Now. And this. And, if true, the time and place to draw the line. (But not true: UPDATE)

15 Jun
June 15, 2013

UPDATED: http://www.theatlanticwire.com/politics/2013/06/jerrold-nadler-does-not-thinks-nsa-can-listen-us-phone-calls/66278/

So this allegation falls on its ass, and rather quickly, too.  The desire to reach beyond the known facts into the realm of speculation is pretty high in general, but on a spy story it’s even stronger, it would seem.  In any event, I’m leaving this post up regardless.  Lots of good discussion in the comments section, but more than that, it represents the line at which I believe a civil liberties intrusion rises to an unconstitutional and indefensible standard.  This was hyped.  But again, there is no reason not to be wary of government overreach.

The original claim, now denied and dormant, is here, followed by my own, earlier comments:

http://news.cnet.com/8301-13578_3-57589495-38/nsa-admits-listening-to-u.s-phone-calls-without-warrants/

In my original post criticizing the hyperbole over the Verizon phone metadata gathering by the NSA and the revelation of a court order for that program, I wrote this:

“When the Guardian, or the Washington Post or the New York Times editorial board are able …to show that Americans actually had their communications monitored without sufficient probable cause and judicial review and approval of that monitoring, then we will have ourselves a nice, workable scandal. It can certainly happen, and given that the tension between national security and privacy is certain and constant, it probably will happen….

Well, this is the only report, and at a surface level, it seems credible enough as reporting — but it also only seems to be one congressman referencing the NSA admission in a closed-door session.  It will be interesting to see if the story stands on its own legs and runs.  But now, if the story holds, we may indeed have a nice, workable scandal.***

The legal collection of domestic metadata, and its use as an anonymous haystack in which to find the needles that connect to overseas terror operations? No.  That was a discriminating, non-invasive coordination between foreign intelligence efforts and domestic counter-terror programming.  And note: This news account states explicitly that this new discovery is of NSA activity is separate from the Verizon court order revelation and the metadata collection.

The data-mining of the internet — if it’s targeted overseas? No, NSA has been acquiring overseas communication for decades. That’s its legal, if not so entirely moral role (gentlemen do not read each others…)

The  linguistic-based capture of overseas conversation? Again, that’s the intelligence agency’s purpose.  Spying is spying and we do it, as do all modern nations within their capacity.

But this report — again, if corroborated conclusively — has the NSA, an agency that is not supposed to engage in domestic spy work, monitoring the actual conversations of American citizens, domestically, and doing so without warrants for wiretaps.  If corroborated by other media, this is, de facto, a fundamental breach of  the Fourth Amendment.  It would be a breach if was a domestic agency.  A warrantless wiretap is just what it sounds like and brings us right back to the pre-FISA, pre-Patriot world of J. Edgar Hoover.

If the NSA has been given authority to listen to domestic conversations without agents of the FBI — the counter-intelligence and counter-terror agency of domestic jurisdiction — writing an affidavit, and obtaining a warrant, then the book is closed.  NSA is then illegally spying on Americans, purposefully and with absolute intent.  And the current FISA laws, coupled with the Patriot Act, and overseen by the FISA process, without adequate independent oversight from either congress or any other entity — that whole edifice is insufficent to the task of protecting American civil liberties.  Indeed, for the sake of reform, it would  my hope, if the story holds, that some judge on the FISA court actually signed off in some capacity on non-specific, warrantless wiretapping.  The better evidence to level fire at the national security apparatus’ secret court as the weakest part of this process.

My original critique remains my critique.  New technology is going nowhere, it will be with us forever, increasing geometrically, as a neutral entity, to be used purposefully for legitimate goals or to be misused against civil liberties.  What must be addressed is process.  The FISA court and Congressional oversight can’t work with overwhelming secrecy, with an absence of independent review, and without periodic and public, if carefully general, assessments of the risks and costs to civil liberties.  If this story is true, then now — right now — there is a constitutional affront worth talking about.

If this story stands, get mad about this.  Because if this isn’t illegal under our present laws, it should be.  It violates the Fourth Amendment, in every sense. And it’s real and actual government overreach.  It’s not speculation. It’s actual.  If the story holds, then misuse happened, and  there is now a purposeful breach of civil liberties upon which one can fight for reform.

***There are a lot of “ifs” in this post, and I’m adding this sentence two hours after my original post, still waiting to see if the allegation elicits either confirmation or pushback from agency officials and the administration.   More to come, we assume.

 

149 replies
  1. David Jao says:

    Mr. Simon, after all your tortuous attempts to draw an (in my view meaningless) distinction between metadata and content, if you still think the NSA is not recording phone calls, then I have a bridge to sell you.

    http://www.washingtonpost.com/world/national-security/nsa-surveillance-program-reaches-into-the-past-to-retrieve-replay-phone-calls/2014/03/18/226d2646-ade9-11e3-a49e-76adc9210f19_story.html

    Reply
    • David Simon says:

      The distinction you miss is between the domestic operations and overseas. I want the NSA to effectively spy on legitimate targets overseas. I don’t want them to violate civil liberties domestically, and I want them to minimize the offense to ordinary, uninvolved individuals in the target countries. That said, I am wholly impressed that they are capable of what is described in the Post article. I didn’t think the storage capabilities were at such a point.

      The only two cavaets I will note is that we don’t know the target countries. The volume of phone traffic in say civil-war involved Syria for a month might be less than say North Jersey for a month. And further, the leaked documents note that even this amount has exceeded the available bandwidth for proper capture. But yes, greater potential is there. And I am impressed.

      Having said that, the leak documents are also excuplatory of the kind of violation you seek to imply. To attempt such retro-capture, apparently, the NSA needs a specific finding and a designation of the target country as a host for specific violative activities. If they were capturing conversations en mass in either the United States or politically neutral environments, would there be such discussions?

      If misused, it will be a gross violation of civil liberties. Evidence of its actual misuse has not been forthcoming for the past year, despite your presumed salesmanship of bridgework. All of this argues for standardization of the technology in legal and political and national security terms, for an adversarial and more open FISA court process. None of it argues against the end of signals intelligence, or for the unilateral forswearing of the technology. That always seems to be your end game. It is improbable, impractical and, in the real world, dangerous.

      If after the mass murder of those Syrians by biochemical agents, the NSA could have lowered a net on all Syrian phone traffic and isolated telephonic mention of the act by government officials and agents, would that be a bad thing? Or a moral achievement?

      If the U.S. and Japan and China are going to dispute air space over the China coast and fly military aircraft or target radar to assert jurisdiction claims — as they have been doing these past months — do you want U.S., China and Japan signals intelligence to be the best it can be, and for there to be no confusion or misapprehension by the powers involved? Or do you want them guessing at the brink of conflict?

      Bad or no intelligence brings us to August 1914. Or October 1962.

      If nation-states are the inevitable — and right now they are — I want them to spy their balls off and do it well. I want us to know what Chinese leaders are thinking, and vice versa. I want the Japanese fully informed. I want fewer tactical mistakes, not more.

      Which is ultimately my problem with Mr. Snowden. Not his reveal of U.S. signals capabilities domestically, which, while I disagree with his constitutional and legal analysis, is certainly something that the nation should discuss openly. There I can credit him. But in sharing our overseas capabilities, I am less sanguine. No nation can operate intelligence capabilities if every participant is free to trade in secrets. It doesn’t work that way, and there, Mr. Snowden has exceeded his moral authority, I believe. There are no corresponding whistleblowers on the Russian end, for example. I believe the last fellow who fit that description was last seen in a London hospital dying a terrifying death from the ingestion of radioactive poison. The world remains the world, and Putin, host to your presumptive hero, is not offering such unilateral abdication of intelligence capabilities. For him, signals intelligence, its reach and preservation, will not contend even with anything remotely resembling a FISA court or a public discussion.

      All that said, it is good to hear from you again. I have wanted to write more these past months on the NSA stuff, but script work has been due. Maybe in a month or so we’ll have more to chew on.

      Reply
      • David Jao says:

        Well, as the Post article points out, US citizens living abroad will get sucked into any dragnet. Certainly anything that captures 100 percent of a country’s telephone calls will end up wiretapping Americans en masse. The exact same thing would be highly illegal in the US. I disagree with your assessment that US citizens forfeit their constitutional rights upon leaving the US. For that matter, I think people of all countries morally deserve constitutional rights, although I admit that legally the plain language of the US Constitution states that it applies only to Americans.

        A lot of your logic falls along the lines of the ends justify the means. I disagree with this approach. There is no doubt that a police state would solve many of our security problems, but I bet most Americans would not accept security at this price. The US Constitution is supreme law, and the rights that it grants are inviolable. Anything we do, whatever its purpose, must conform to the constraints imposed by the Constitution. Now, it may well be the case that in the last 200 years the world has changed in such drastic ways as to call into question the viability of our current constitutional regime against new and horrifying existential threats. Rather than just simply ignore the Constitution, the proper way to address this problem is by passing a constitutional amendment.

        The fact that Russians or Chinese or whatnot operate under looser rules is not a good reason for us to do the same. We’ve always accepted that we have to operate under this handicap. Otherwise, as you say, we would be spiking Snowden’s tea with polonium. And again, if the situation is really dire, I’m happy to give a constitutional amendment due consideration.

        Reply
        • David Simon says:

          I am sanguine about the random circumstance of U.S. citizens being “dragged” into foreign surveillance for a couple fundamental reasons:

          1) On ANY TELEPHONIC INTERCEPT, even legal, court-ordered wiretaps, there are ALWAYS innocent conversations that are recorded by the government. Why? Because such a law enforcement technique can never be precise in the sense that not all calls to or from a given number or communications device are related to the criminal conspiracy or suspected conspirators. The recording of such innocent calls does not invalidate the legality of the court-ordered intercept, although the government is obliged to do what it can to legally “minimize” such recordings, and to not retain such material. This “minimization” is a legal logic that is overseen by the judge and is monitored for compliance.

          Keep in mind that we are talking about conversations that are actually recorded and may well be actually listened to by human ears to determine if they are relevant to the conspiracy before it is determined otherwise.

          In the case of a dragnet of all calls in say, Syria or Iraq over a period of thirty days, the minimization of anyone’s calls to relatives or a travel agent or whatever is actually occurring without human surveillance. (i.e. neither the NSA, nor the FBI, nor other intelligence services have the manpower to furtively listen to this stuff; instead a computer searching for linguistic functions relating to military and political intelligence is highlighting the calls that are to be reviewed.) That’s a lot of minimization before a human being ever listens to a call. But yes, let’s say that an American citizen has a call acquired in which he used some of the terms for chemical weapons in Syria. And let’s say the call is then reviewed and it is determined that one of the participants is an American citizen. Is it not logical to imagine that if there is a cause for concern, that further investigative avenues will be pursued under the auspices of the FISA court, meaning under court-supervised warrant. And that with other calls, the essential minimization will occur? And meanwhile, our intelligence agencies have a tool to effectively dragnet for Syrian foreknowledge and complicity in the use of chemical weapons.

          2) Your “ends justify the means” claim is hyperbolic and equivocal in respect to this and every other law enforcement asset. I am not claiming that any ends justify the means. Or that all ends justify the means. I am saying that some ends do justify some means. This is simply true and a basic legal calculation of ALL LAW ENFORCEMENT TECHNIQUES, ASSETS and TECHNOLOGIES.

          For example, police interrogations in our democracy can result in our investigators achieving confessions for crimes as well as complicit statements by suspects. They can also result in investigators using the isolated and compelling atmosphere of an interrogation room to brutalize suspects, to psychologically intimidate innocent people into implicating or suggestive statements, and to unfairly target and abuse citizens. And yet — the U.S. Supreme Court allows police interrogation to continue as a basic investigative technique in America.

          Make no mistake, in the years since the Escobedo and Miranda rulings, at any point, the U.S. Supreme Court could have simply ruled that Americans are entitled to have a lawyer with them at all times when they are being questioned by investigators. But the Supreme Court has never so ruled, and indeed, they have allowed isolated interrogation to be maintained as a basic investigative tool. Why? Because any lawyer would immediately end any interrogation of any client, knowing that such questioning is safer for the client before a grand jury, or even better, in a proffer session with the lawyer in attendance. Ergo, the improper use of intimidating or brutalizing interrogations would be effectively ended in America. But at the same time, those interrogations in which investigators use leverage and isolation to extract actual information from guilty parties would also be ended. Meaning, there would be no abuse of interrogation as a tactic, but no proper use either. And many, many serious crimes would never be solved. So the court allows interrogation to continue, and erects rules to punish or mitigate against abusive use of the tactic. It is a compromise, and a legal and practical one: The ends justify some means, not others.

          The targeted surveillance of American citizens and the warrantless human monitoring of a citizen’s communications cannot be justified by the ends in my mind. But the unintended random capture and then non-retention of some American communication can be justified under national security, provided that minimization efforts are undertaken and achieved. Just as happens in every wiretap I ever covered domestically. You are wrong to suggest that the Constitution has been violated by intelligence gathering overseas merely because Americans may have conversations acquired overseas. The Constitution and all resulting case law stands mute on such things. The 4th Amendment speaks to the domestic privacy of citizens. No one is ignoring the Constitution here. You are manifestly applying it in a manner in which courts have consistently ruled it does not apply. There are no constraints on the gathering of intelligence overseas by our government. To the extent that some of that intelligence may involve Americans, there are Constitutional constraints as to additional investigation of those citizens or the use of material legally and domestically, but intelligence gathering? No. You have manufactured a Constitutional protection that simply does not exist. You have no 4th Amendment right to protect the acquisition of your communications overseas for purposes of intelligence gathering, as opposed to law enforcement. Of course, you have a 4th Amendment right as to its acquisition domestically, and to its material legal uses regardless of where it is captured, etc.

          Ergo, your last paragraph is also a false dichotomy. We are not operating under the same rules as the Russians or Chinese by any means. They have no restraint on ANY USE of their citizens’ communications, no Constitutional protections, and no right to privacy that they need observe. We are, in fact, contending with these things. That the right to privacy doesn’t wholly extend to cellphone calls in Syria or Iran, if a presidential finding has instructed intelligence agencies to gather data in such places, is true. But that fact scarcely justifies your sudden and unevidenced claim that we are operating under comparable rules to a totalitarian regime. We are not. And nothing in the Washington Post article is suggestive that the new technology has been employed domestically, or that the government is listening to Americans without court order.

          Fears of the draconian are not the same as the actual affront. There is a worthy discussion to be had about what we are and are not comfortable with in the name of national security or privacy. But if you think we haven’t been tapping Soviet or East German or Chinese or Cuban embassies for decades and capturing any calls to and from American citizens, you haven’t been aware of the Cold War. Now, a technology exists for capturing and analyzing telephonic intelligence in hostile regimes. The scale is impressive, but the legal logic and the authority of our intelligence agencies to employ that logic is consistent.

          Reply
  2. Arun says:

    One last – when the Supreme Court gutted the Voting Rights Act, one of the arguments that was made (either in the press or in the court or in both, I do not know) was that African-American voter turn-out in Alabama is higher than that in Massachusetts, and so voting right protections aren’t needed in Alabama! So Alabama is going ahead now with its photo voter ID law, and we know which classes of people are most likely going to find it difficult to vote now.

    The lesson is as plain as is possible – if you don’t vigorously exercise and defend your rights, you will lose them. This is true of voting rights, of civil forfeiture laws, of the FBI’s National Security Letters and of the NSA surveillance. I think the original American Revolutionaries were up in arms against the British over far less. We, their intellectual descendants, as witnessed even on this blog, are far more sheep-like.

    Reply
    • David Simon says:

      No one is arguing your philosophy, to the extent that philosophy argues that a government can use seemingly benign instruments for malevolent purposes if those purposes are unchallenged. There are plenty of places to argue against affronts to civil liberties. Begin with the Reuters revelations about SOD and the back-channel use of NSA intelligence for domestic law enforcement. That is an affront of the highest order.

      But again, you are claiming rights for yourself that have never existed under the Constitution or anyone’s interpretation of it thus far. You have to know your actual rights to presume to safeguard them. And insisting that more of them exist than do is not an auspicious start.

      Government has goals that are legitimate. And law enforcement and civil protection are among those goals. Just because a law allows government to investigate possible wrongdoing doesn’t mean that the law is an affront. it’s how it is used and how its use is restrained that tell the tale. Your cite of the government’s subpeona power and its ability to compel information from communications carriers is not on its face much of an affront to civil liberties, but rather an appropriate investigative avenue in the extant case.

      Reply
  3. Arun says:

    Here’s another set of laws – on civil forfeiture – that began with “you have nothing to fear if you are innocent” and has ended up in the government preying on its citizens.
    http://www.newyorker.com/reporting/2013/08/12/130812fa_fact_stillman

    The basic principle behind asset forfeiture is appealing. It enables authorities to confiscate cash or property obtained through illicit means, and, in many states, funnel the proceeds directly into the fight against crime…..

    ….n general, you needn’t be found guilty to have your assets claimed by law enforcement; in some states, suspicion on a par with “probable cause” is sufficient. Nor must you be charged with a crime, or even be accused of one. Unlike criminal forfeiture, which requires that a person be convicted of an offense before his or her property is confiscated, civil forfeiture amounts to a lawsuit filed directly against a possession, regardless of its owner’s guilt or innocence.
    ….

    But a system that proved successful at wringing profits from drug cartels and white-collar fraudsters has also given rise to corruption and violations of civil liberties. Over the past year, I spoke with more than a hundred police officers, defense attorneys, prosecutors, judges, and forfeiture plaintiffs from across the country. Many expressed concern that state laws designed to go after high-flying crime lords are routinely targeting the workaday homes, cars, cash savings, and other belongings of innocent people who are never charged with a crime.

    with plenty of examples.

    Reply
    • David Simon says:

      Yes, just so.

      So let’s attack the misuse of civil forfeiture. Those laws have actually been misused against American citizens. Instead of this demand for information from a communications carrier being allegedly used by Mr. Snowden. That, given Mr. Snowden’s status as a fugitive under indictment for three felonies, is actually a legally appropriate and relevant use. You do understand that rather than defending your initial and hyperbolic claim that there was anything untoward here in the government’s interest in this digitial carrier, you are reaching well past that to gather other laws and other excesses of government in a complete non sequitur.

      No one is more adversarial to the drug war than I am.

      And indeed, the place where our willingness to allow the NSA to follow investigations back into the country has become untenable is not in the counter-terror field, where no vioaltions of actual civil liberties have yet been shown against Americans for the maintenance and use of the data piles. No, it’s in the back-channel probable cause for drug cases that the NSA has funneled to domestic law enforcement through SOD — a scandal recently detailed by Reuters. That had nothing to do with Mr. Snowden’s revelations or Mr. Greenwald’s hype — but that is where Americans need to make a stand, not over bullshit.

      There you have real mission creep so that the NSA is not following terror leads back into country, but abetting domestic law enforcement on domestic issues. And that is where a legal barrier needs to be erected, and damn soon. But those articles didn’t get a hundredth of the attention of the horseshit because it doesn’t involve the presumed martyrdom of Mr. Snowden. And because it “only” affects drug traffickers and not middle Americans who can be frightened about the government reading their records. Sorry, I’m not buying anything here.

      And I’m attentive to the civil liberties implications where they actually exist.

      Reply
  4. Arun says:

    On the FBI’s National Security letters:
    http://viableopposition.blogspot.ca/2013/06/national-security-letters-slipping.html

    Let’s say that for one reason or another, you find yourself in the FBI’s figurative crosshairs (let’s hope it’s figurative!) for “security reasons”. Your friendly neighbourhood FBI Special Agent can simply sign what is called a National Security Letter (or NSL) that demands detailed information about you from your ISP or other communications provider without:

    1.) A court review or approval.
    2.) Telling you that you are the subject of an NSL.
    3.) Actually suspecting you of a crime.

    The FBI can then get your true identity, your IP address and the IP addresses of any websites that you may happen to pass through, the email address of everyone that you email or who email you and the time and duration of all of your communications. This Letter also gives the FBI the right to access your private credit and banking information and, by law, the bank or organization is forbidden to notify you that you are the subject of an investigation. These Letters are also never subject to review by the Department of Justice and do not require the authorization of a judge, grand jury or prosecutor.

    and

    National Security Letters were created in the 1970s for the purpose of investigating terrorism and espionage and narrowly allowed the FBI to investigate the customer records of individuals that were suspected of being foreign agents. Thanks to GW and the Patriot Act, the FBI has transformed the use of NSLs to include all United States residents and visitors, whether or not they are allegedly spies or terrorists.

    Back in the 1970s, I’m sure there was a David Simon who said, National Security Letters are harmless, aren’t being abused, pose no threat to civil liberties, “why are you needlessly alarmist?” , are necessary for national security, and so on.

    Reply
    • David Simon says:

      Excuse me, but what makes you think that the FBI hasn’t obtained a subpeona or court order for that information on Mr. Snowden? You’ve jumped ship on the premise, I believe. A simple subpeona or court order needs the signature of a U.S. District Court judge. Do you know that the NSLs are the only paperwork here, or is that merely the letter that goes to the carrier, so as to keep the investigative details secret from the carrier? I believe that as with any court order, some judge at the FISA court is indeed signing off on Mr. Snowden as a target and on the FBI seeking this information from this carrier.

      In that logic

      1) There has been sufficient review — the same as any subpeona.
      2) Again, they don’t tell you that you are the subject of a criminal investigation in any instance. So that is no different from an ordinary subpeona.
      3) Court orders and subpeonas can be obtained for third-party data and records for any number of investigative reasons in all government probes. They do not need to suspect you of a crime.

      You seem to have confused the standards for a court order or subpeona with a Title III wiretap warrant for actual intercepts. The legal standards are different, and you seem to be applying the latter to the former.

      Reply
  5. Arun says:

    http://www.bloomberg.com/news/2013-07-31/the-public-private-surveillance-partnership.html

    Bruce Schneier:

    There are two types of laws in the U.S., each designed to constrain a different type of power: constitutional law, which places limitations on government, and regulatory law, which constrains corporations. Historically, these two areas have largely remained separate, but today each group has learned how to use the other’s laws to bypass their own restrictions. The government uses corporations to get around its limits, and corporations use the government to get around their limits.

    This partnership manifests itself in various ways. The government uses corporations to circumvent its prohibitions against eavesdropping domestically on its citizens. Corporations rely on the government to ensure that they have unfettered use of the data they collect.

    Here’s an example: It would be reasonable for our government to debate the circumstances under which corporations can collect and use our data, and to provide for protections against misuse. But if the government is using that very data for its own surveillance purposes, it has an incentive to oppose any laws to limit data collection. And because corporations see no need to give consumers any choice in this matter — because it would only reduce their profits — the market isn’t going to protect consumers, either.

    Our elected officials are often supported, endorsed and funded by these corporations as well, setting up an incestuous relationship between corporations, lawmakers and the intelligence community.

    The losers are us, the people, who are left with no one to stand up for our interests. Our elected government, which is supposed to be responsible to us, is not. And corporations, which in a market economy are supposed to be responsive to our needs, are not. What we have now is death to privacy — and that’s very dangerous to democracy and liberty.

    Reply
    • David Simon says:

      If you want to have a Fourth Amendment discussion about whether third-party data has or should have constitutional protection, that’s entirely worthy. But understand that communications metadata has been outside the Fourth Amendment since Jimmy Carter was president — and that innumerable worthy investigations of crimes ranging from murder to kidnapping to conspiracy in terrorism cases have been achieved using that resource.

      I know that doesn’t make for as good an impression of Samuel Adams as you enjoy offering here, but it does correspond to a fundamental truth.

      Reply
  6. Arun says:

    http://www.theguardian.com/commentisfree/2013/aug/09/lavabit-shutdown-snowden-silicon-valley

    Fun!

    A Texas-based encrypted email service recently revealed to be used by Edward Snowden – Lavabit – announced yesterday it was shutting itself down in order to avoid complying with what it perceives as unjust secret US court orders to provide government access to its users’ content.

    and

    What is particularly creepy about the Lavabit self-shutdown is that the company is gagged by law even from discussing the legal challenges it has mounted and the court proceeding it has engaged. In other words, the American owner of the company believes his Constitutional rights and those of his customers are being violated by the US Government, but he is not allowed to talk about it. Just as is true for people who receive National Security Letters under the Patriot Act, Lavabit has been told that they would face serious criminal sanctions if they publicly discuss what is being done to their company.

    Reply
    • David Simon says:

      You know, that this is a fundamental of ALL court orders and subpeonas in pending investigations.

      If a common police detective wants to seek your communication records by court order in Baltimore, Maryland then the communications company is obliged not to reveal the fact of the investigation for a significant specified period to avoid compromising the investigation. That’s simply true, never mind the Patriot Act. The only difference between this company and AT&T or Verizon is that they don’t want to operate under U.S. communications law and the U.S. criminal code.

      If every time a police detective wanted to pull a suspect’s phone records, the carrier then notified the customers, you know what? No one would ever achieve a proactive investigation of any crime.

      It never fails to amuse me how the most righteous civil libertarians think everything is an affront. Sometimes, it’s merely an investigation, which is what law enforcement is supposed to be doing. Mr. Snowden is wanted on a federal warrant and he is charged with revealing national security secrets. If he is communicating using any medium, I would expect that criminal investigators are going to be addressing that. And if those operating the medium don’t wish to cooperate with law enforcement, well, they certainly have the option of not doing business as a communications entity in the U.S. But that’s their call.

      This post kind of reveals to me, Mr. Arun, that you really only see even the most normalized law enforcement activity as evil and corrupt. In this case, it’s not. And it’s headless chicken shit like this that makes real affronts to civil liberties harder to sell.

      Reply
      • Arun says:

        Where your logic falls flat on its face is that the cases you mention target a specific individual or group of individuals, where the individual or group would be alerted by knowing of an investigation; and not all users or all content.

        Reply
        • David Simon says:

          The argument about the metadata pile in Utah is addressed elsewhere, and it has some unique aspects, as per both the intent of the national security apparatus vis a vis counter terror — and the degree to which that data, once collected, is being used. That opens another can of worms that was dealt with in great detail.

          Here, however, you are moving the target — and I’m calling you on that. Here, the government is not gathering any datapile of all users. It is trying to find out how Mr. Snowden is communicating and what he is revealing to others — and that is indeed within the purview of a specific criminal investigation. Meaning, your outrage at this specific matter is hyperbole and off-point.

          Reply
  7. Arun says:

    Nothing to worry about, this is not from Snowden, but from anonymous sources onlee:
    CNET : Feds tell Web firms to turn over user account passwords

    The U.S. government has demanded that major Internet companies divulge users’ stored passwords, according to two industry sources familiar with these orders, which represent an escalation in surveillance techniques that has not previously been disclosed.

    Move along, nothing to see now, at worst it is for the good of National Security!

    Reply
    • David Simon says:

      CNET is the same source that hyped and jumped the gun on the NSA listening to actual phone calls. Let’s wait for more confirmation on their stuff going forward, shall we?

      Reply
      • Arun says:

        If one grants the CNET author, Declan Mccullagh, the same courtesy as is extended to you, namely reading the complete news-story with the comprehension button turned on, then I doubt you will find anything to complain about him. I didn’t see anything wrong in his past pageful of postings.

        Reply
        • David Simon says:

          That same author is indeed the gentleman whose work I linked to and posted as indicative of a claim that the NSA was actually recording and listening to the phone calls of Americans without a wiretap order. I posted the article and gave it sufficient credibility and then waited to see if anyone else in the media could or would confirm its details. None have to this date.

          If you trail back on the site you will find that I was entirely credulous and open to the idea that CNET know their business the first time around. I did indeed grant him an open mind on his previous claim. But once bitten, twice shy.

          Reply
  8. Arun says:

    From aforementioned paper:

    As mathematician and former Sun Microsystems engineer Susan Landau said when news of the NSA’s metadata program broke in early June, “In the world of business, a pattern of phone calls from key executives can reveal impending corporate takeovers. … [Metadata] can also reveal sensitive political information, showing, for instance, if opposition leaders are meeting, who is involved, where they gather, and for how long.” Even wiretapping cannot match the level of detail drawn from
    comprehensive metadata collection and analysis. As Joss Wright, a researcher with the Oxford Internet Institute, said, it is “far worse than reading your diary, because you don’t write everything in your diary.

    Reply
    • David Simon says:

      And if so used, it will be an affront to civil liberties. And if not, not.

      Thus far, not.

      On the other hand, the Germans, who say they are passionate about domestic spying because of the East German experience with the Stasi, actually employed metadata to do the following: Someone was riding the autobahns taking random shots with a firearm at various cars. Numerous incidents. Some near fatalities. No one knew where the shots were coming from or why. German law enforcement uses the GPS on all vehicles in its database and narrows the field from the entire driving population to the suspect, who is arrested.

      Technology is certain. How it is used or abused — for societal benefit or no — is the place to draw the line. All that you do when you point out the investigative benefit of metadata is point out that it does indeed have investigative value. Which I accept as a given. Who uses it and how is the issue. And there, all the jeremiads about the surveillance state to come fall short without providing evidence of a government misusing the data against any actual individuals.

      Reply
  9. Arun says:

    Metadata is just as invasive as listening in to your phone calls.
    http://www.itworldcanada.com/news/metadata-more-revealing-than-content-ontario-privacy-chief/147396

    Also this 4MB PDF paper:
    http://www.privacybydesign.ca/content/uploads/2013/07/Metadata.pdf

    From which I excerpt:

    In 2012, no less than Dr. Vint Cerf (inventor of the Internet with Robert Kahn), mentioned to me in a conversation that “traffic data can be much more revealing than the content of our communications.” When someone of the calibre of Vint Cerf says something like that to you, it makes quite an impression.

    Similarly, in June 2013, Professor Daniel Weitzner, a principal research scientist at MIT’s Computer Science and Artificial Intelligence Laboratory, referred to metadata as being “arguably more revealing [than content] because it’s actually much easier to analyze the patterns in a large universe of metadata and correlate them with real-world events than it is to go through a semantic analysis of all of someone’s email and all of someone’s telephone calls …”

    A few days later, Professor Michael Geist, Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, stated: “What we have now … [is] 21st century technology for surveillance purposes, with the ability to capture huge amounts of metadata and then data-mine it to capture all kinds of data that sometimes can be more revealing than the content itself.”

    In short, concerns about the state’s massive seizure of metadata cannot be brushed aside simply because actual content is not being accessed. On its own, sweeping metadata seizures can have enormous privacy implications. Whenever you hear someone say that metadata or traffic data is not privacyinvasive
    – that scooping it up is not like eavesdropping on a telephone call or reading the contents of your email – challenge that view.

    I do not mean to make an argument from authority, just quoting the authorities to make it clear that this paper ought to be read by anyone who has an opinion about the NSA surveillance program.

    Reply
  10. Bruce says:

    Another aspect is inter-agency cooperation between countries, e.g. between the US and Canada. Here in Canada we have similar rules but nothing in the rules of either country precludes the NSA listening in on Canadian telephone calls and other communications (especially things involving American services like Google) and then sharing the information with Canadian authorities. There have been several instances of this happening here not necessarily with good results depending on your point of view.

    The agency here is caught no matter which way it turns. The deadliest terrorist incident before 9/11 was the attack on Air India flight 182 from Montreal to London on 23 June 1985 in which 329 people died off the coast of Ireland. However, the bomb was made in BC. Skih radicals had previously made many inflammatory statements — in Punjabi with toned down rhetoric in English. Therefore intelligence agencies here managed to intercept many hours of telephone calls between Sikh radicals before the incident. But of course they were all unintelligible to them until they could be translated until English — which did not happen until long after the attack. Even now — nearly 30 years later — only 1 person has been held to account — and it’s generally believed he was a minor actor in the attack.

    On the other hand, other records show it was spying on gay organizations — even though homosexuality has been fully legal here since the 1960′s — long after that. Naturally it’s hard to see those organizations as a threat to national security.

    Reply
  11. ROAR!!! says:

    As someone who lived in NYC for many years following Septermber 11 and initially worked in the News Corp building on a high floor at the NY Post, the threat of terror attacks was a real part of my existence as we charged into war and beyond. As London was bombed, I learned to take the first or last car on a subway train and take various other actions to cope with the situation. Glimpses and stories of rabid anti-Americanism remain a part of life there and have pervaded the cultural melting pot that is one of the Big Apple’s greatest strengths. While the beauty far outshines the bad, there is a sinister force that creeps among the various nooks, crannies & dark holes of New York and its outer reaches.

    We can almost all agree that it’s a very unfortunate development, but the world that we live in. Politically and socially the pervasive spying program goes against my beliefs and sets a dangerous precedent. That said, if you have followed the daily news in New York over the last twelve years then you’ll see just how effective these programs have been at keeping us safe. Those are just the select few cases that we’ve heard about. There are many more that remain classified. I don’t know if it was a conscious effort or not, but I was always surprised that some terror cell busts and other such events didn’t receive more national coverage. I’m good friends with one excellent retired lieutenant who was a 9-11 first responder and now works in an important private security position involving government. Gaining insight into just how dangerous the situation from those who are actively involved in the struggle to combat these forces and protect our safety might go a long way toward changing some people’s minds. It makes me thankful.

    It’s an unfortunate situation that we find ourselves in, but I’ll reluctantly give up some privacy and incur some risk if it means we can still stay competitive in this fight to prevent terror as technology continues to improve.

    Thank you so much for establishing this website, Mr. Simon. We NEED this kind of rational debate more than anything right now. We may not agree on all of our politics or even the analysis of this situation, but you’re a hero for what you’re doing here. I’m eagerly anticipating the final season of Treme. Go O’s!!!

    Reply
  12. David Windt says:

    Now true again (maybe). Another update (June 17, 1:35pm) by Declan McCullagh at CNET:

    http://news.cnet.com/8301-13578_3-57589672-38/snowden-nsa-snoops-on-u.s-phone-calls-without-warrants/

    Reply
    • David Simon says:

      No, apparently not.

      Snowden’s answer it to emails, not phone conversations. Read it. The commingling of the two in such an answer is problematic.
      The phone metadata program and PRISM are separate, and telephonic law different from internet content.

      No one but CNET is hyping this and we are days here. And nothing in this article has anyone tapping a phone without a warrant. And looking at phone data no one needs a warrant. Court order only to obtain, less than a warrant no affidavit of full probable cause, etc. But Snowden’s answer is about email, not phones.

      Reply
      • Thom says:

        Snowden answered a flat “Yes” to the question about phone calls!

        Sheesh!

        Look at question and answer at 11:55 am.

        And here’s a 2008 story with actual NSA and NSA-related analysts admitting they listened to Americas phone calls.

        http://abcnews.go.com/Blotter/story?id=5987804#.Ub-SbBZyjGg

        Reply
        • David Simon says:

          Answered yes and then proceeded to explain using emails.

          Thom, the story isn’t holding. It may at some point. But now it is unconfirmed and uncorroborated.

          Reply
          • Thom says:

            Completely lost as to why you didn’t respond re the 2008 story, and how it speaks to Snowden’s claims, and the CNET story – or does not.

            Reply
            • David Simon says:

              Tired of chasing everyone’s sporadic cites. If it’s a 2008 story, and singular in allegation, I’m guessing it had no legs. The NSA is under fundamental and continuing scrutiny right now. If they’re listening to phone calls domestically, without a warrant, it will pop as more than a single-shot on CNET or something you found in the archives and want to post selectively.

              Either they crossed the line and now it’s gonna out, or not. Willing to believe either, but also willing to wait and see what actually evolves in the here and now.

              Reply
              • Thom says:

                Decidedly not single-shot. They made it clear this was commonplace.

                Most importantly: They said it was LEGAL. That means that those interviews revealed not just some naughty kids listening to sexytime talk – THEY SAID IT WAS LEGAL.

                That speaks EXACTLY to all your arguments about how it’s not – you know – LEGAL – to listen to American citizens private calls. The crux of your argument has been about how not only is there no proof this is happening – it’s not legal if it is.

                It then raises another really big point: Why is it legal? And then another: If it’s legal – it’s legal for a reason.

                Reply
              • Thom says:

                Tired I can completely understand. You have been a champion here.

                I have no idea what you think of James Bamford, but he mentions the woman interviewed in my link – Adrienne Kinne – in this recent article on all this stuff:

                http://www.wired.com/threatlevel/2013/06/nsa-prism-verizon-surveillance/

                NSA investigated – “insufficient evidence” to support Kinne’s claims, per FOIA release at Wiki.

                http://en.wikipedia.org/wiki/The_Shadow_Factory

                Reply
      • Thom says:

        Needless to say – that’s not the greatest fear re privacy – but it certainly speaks loudly to it.

        Reply
  13. wildwoman says:

    Snowden is answering questions from the readers of the Guardian. Perhaps you could ask him yours. Would love to see this clarified.

    Reply
  14. Thom says:

    I’d have to go back to be sure, but I think this contradicts some things you’ve been saying. Maybe not, but:

    ‘Pilon and Epstein write:

    “The names linked to the phone numbers are not available to the government before a court grants a warrant on proof of probable cause, just as the Fourth Amendment requires.”

    This is incorrect. Nothing in the law would require a warrant to get the name associated with a number, and the public statements of FBI Director Robert Mueller directly contradict this claim.

    At the risk of stating the obvious: phone numbers can often be associated with names by a simple Google search, and the NSA and FBI have access to far larger databases that would likely make such an association trivial.

    But even if that weren’t the case, 18 USC §2709 allows names, addresses, and other “basic subscriber information” associated with a number to be obtained via a National Security Letter based on a certification of “relevance” to an investigation, with no need for judicial approval. As Director Mueller explained at a recent hearing, this is precisely how such information would be obtained here, assuming it were not already available.’

    http://www.cato.org/blog/reply-epstein-pilon-nsas-metadata-program

    Reply
    • David Simon says:

      The metadata has the names, to be sure. Subscriber information.

      But the methodology that NSA seems to be selling to the FISA court is:

      1) We get all the U.S. phone data. We don’t have any human look at it or sift it or investigate it. It sits as a haystack in the middle of the Utah facility. All of the data is treated anonymously and all of the billions of calls by hundreds of millions of Americans is data unattended to by any actual human investigation. Then we run a suspect number through it. If we find a needle — a connection to a number — then we pull the subscriber info and begin looking at that number and that subscriber. If we can obtain sufficient probable cause, we then might graduate to a court-approved wiretap to begin monitoring phone calls.

      I don’t know who Pilon and Epstein are. But the above is the program as I understand it from the various interviews and testimony offered,

      Reply
  15. ex-forces says:

    Did the NSA spy on Americans? Gut feeling, of course they did. If you have that type of technology, the tendency is to use it, and answer questions later if you have to. Sometimes gut feeling is more important than visceral knowledge when figuring it out. Precedent comes into it. You look at recent history. Has the US been entirely moral about their decision making process? Erm, vietnam, iraq, etc, should answer that.

    Reply
    • David Simon says:

      See. I have to say this: Fuck gut feeling.

      Facts. Evidence. Reporting. Context.

      Your gut feeling is someone else’s bullshit. And my gut feeling is your bullshit. Humans can’t govern ourselves in a collective by invoking gut feelings. What you feel has no currency with me, and what I feel should have no currency with you. What is knowable, and proveable — these things can then inform intelligent debate and discussion. Short of that, you’re proposing some sort of emo-fest predicated on the sum of our prejudices, personal preferences and fears.

      Reply
      • achilles3 says:

        I wish the MSN was “allowed” to print:
        “Fuck gut feeling. Facts. Evidence. Reporting. Context.”

        On the front page. Everyday.

        Still wouldn’t sink in but it’s the kind of head-bashing reminder that’s needed.

        Kinda reminds me about every time my boss has a gut feeling. Usually means we’re about to have the dumbest meeting ever.

        Reply
        • David Simon says:

          Heh. When editors used to tell me about their gut feelings, I knew I was going to spend the next three days reporting bullshit.

          Reply
      • exforces says:

        Whether you like it or not, gut feeling is an important part of this story, simply because many facts will never be released for public consumption. Sometimes you have to make a leap between what you know, and what you don’t or can’t possibly know – it’s called intuition. I understand your love of logic. I’m not against it either. But there are some circumstances where regardless of the information to hand people have to make a leap of faith (not in a religious sense). Many unknowns….lot of ins, lot of outs. Hey, we all can’t function all of the time like Dr Spock…it’s what makes us human.

        Reply
        • David Simon says:

          Agree to the human part.

          I always assume that if there is something that can be misused at points it will be, that this is the nature of the human condition. But I also believe that it’s not the eventual and inevitable lapses that matter as much as how we respond to the lapses. Do they produce reforms and create new standards of behavior. Or do we just shrug it off, stop shitting the bed for a while, and then go back to screwing up in the same way thereafter.

          And I think that the truth, or most of it, always will out eventually, historically. Few secrets endure, in the end.

          Reply
        • achilles3 says:

          You’re totally right. Can’t just take away gut feelings. But they should be held at bay as much as possible by the facts/evidence.

          Lil Bush’s gut feelings about what and what was not going on in Iraq made for the yellow cake debacle. Good or bad. Not here to debate our efforts in Iraq. But leading by gut (mostly) was responsible for many other people in high places to choose gut over facts. And in hindsight I’d say many of those folks would have held their guts in check and pushed for more facts/evidence/reporting/context.

          That’s all I am hoping for as this whole thing moves forward.

          Reply
      • ex-forces says:

        Also, any chance you can bullet point your arguments? I’m sharing university accommodation with a moron who is for *more* state surveillance because “if you have nothing to hide”….I’d love to bash him over the head with some relevant arguments.

        Reply
        • David Simon says:

          Yeah, the “nothing to hide” argument is appalling. We all have stuff to hide, or if not, our lives are at certain points, a little bit unlived, no?

          Reply
    • Les says:

      What’s interesting is how those gentlemen’s history has been altered for the piece. They didn’t blow the whistle on domestic spying, they complained that their project was shelved in favour of a contractor’s project and filed their complaints with the government. They tried to disparage the other project in every way they could to the point where they started saying that the attacks on 9/11 could have been prevented if the NSA had only chosen their project instead of the other one.

      In the end, both projects were considered expensive failures and the NSA had restrictions placed on how much money they could spend designing their own surveillance projects.

      But the USA Today article tries to make their treatment sound ominous. “Their children were held at gunpoint!” and “They were stripped of their security clearance!”. I would hope they had their clearances removed when they stopped working for the NSA. It would be disturbing if they still maintained the clearances after retirement.

      Reply
  16. The Proper Measure of "Workable Scandals" says:

    You say: “The data-mining of the internet — if it’s targeted overseas? No, NSA has been acquiring overseas communication for decades. That’s its legal, if not so entirely moral role (gentlemen do not read each others…) The linguistic-based capture of overseas conversation? Again, that’s the intelligence agency’s purpose. Spying is spying and we do it, as do all modern nations within their capacity.”

    An enormous amount of work is being done for you, it seems, by the ‘legal’ versus ‘moral’ distinction. It is one thing to link this to some “practical” outlook on what is or is not feasible to think ‘can be changed’ (under practical circumstances where, alas, for better or for worse once something is ‘made law’ if you want it changed ‘go to the legislature’). It is totally another to adopt it as a measure of when or when not do we have a “workable scandal.” For example, there are many–evidently–workable scandals that surface regularly if we hear about China hacking the US to collect intelligence. It seems like a double standard (to say the least) to not apply your stringent metric for when we should or should not have “workable scandals” to the great outrage that is spilled in press and policy circles over the hacking/intelligence offenses against us. No? If so, I suppose we should expect our intellectuals to stand up tall and lambast the next reporter/editorializer who calls out the Chinese for such “immoral” actions.

    The non-chalance with which you regard the international dimensions of this are rather disappointing. Or, perhaps, one should say the way in which the ‘legal-moral’ distinction is trotted out to do so is disappointing. And, of course, here is where labels of political identity do become important (since they are not just sacred altars to which the herd would demand the otherwise ‘independent minded’ to bow down to). That is to say, perhaps if one defiens oneself as an ordinary American ‘liberal’ it is par for the course to say things like you do in the quoted segment above. In which case, one would then hope the label would encourage a more forthright statement of how “okay” it is to go after the citizens and leaders of other nations. Why hide behind the legal-moral distinction. Join the liberals (say, like the folks at the Council on Foreign Relations) who would give a more robust defense of the same stance and say “We don’t like being the world’s policemand but it, alas, falls on us. And our collective intelligence and spying is, therefore, much more noble than when the Chinese do it to us.” I.e. a real liberal (of the CFR persuasion) would have little need for the rather useless legal-moral distinction.

    Of course if one labels or would like to label oneself other than as a liberal of the above type (or for that matter a conservative of some persuasion, including a libertarian conservative) then one would probably have to try to reckon more seriously with why it is okay (even if ungentlemanly) for there to be utterly no outrage (by the measure you propose) when we learn about the depths of our spying on the foreign unworthys of the “workable scandals” that Americans should (by your measure) finally be allowed to be angry about upon learning that, indeed, there has been “linguistic-based capture” of our communications.

    And in rising to the challenge of having to reckon more seriously with this question one has to get beyond the bogeymen cases of the Chinese or the vaguely Middle Eastern terrorists who hate freedom so much. Since, the “gentlemanly” behavior your standard seems to condone looks decidedly different–and to the eyes of many non-Americans I’d guess not hardly just an ‘unworkable’ scandal–when the ‘foreigners’ are Germans or French or whomever else. To wit, take a look at two more of the _Guradian’s_ stories from today: http://www.guardian.co.uk/uk/2013/jun/16/gchq-intercepted-communications-g20-summits and http://www.guardian.co.uk/world/2013/jun/16/nsa-dmitry-medvedev-g20-summit Now, spying, on–err, I mean, reading the email communications of–a Belgian guy near the G20 summit: we know it is ‘legal’ even if not (or is it?) moral. But the real question is whether that is a ‘workable’ or ‘unworkable’ scandal by your metric. If we are mad or outraged are we just fools who don’t understand how the world works? Or is the real question some other that, perhaps, one who has expressed your views should be asking themselves?

    Reply
    • David Simon says:

      I don’t believe nuclear weapons and any geopolitical strategies predicated on nuclear arsenals are not moral abominations. Yet at least eight nations have nuclear arsenals, and more may be joining the group. I am sure you can pen a long essay against anyone who might pause to observe the inevitability of a world in much mutually-assured nuclear deterrence is the status quo, and to find the moral lapse inherent in any who says, as a practical reality, that we cannot turn this fissive and fusive swords into plowshares unilaterally and without regard to the rest of the global reality.

      I’m sure it would be a fine essay. Quite noble and certainly, morally and ethically correct. But until the geopolitical reality changes and nationalism ceases to be a reality in human endeavor, no one — not the U.S., or Russia, or China, or India, or Pakistan, or Britain, or Israel — is giving up their nuclear assets. In the same logic, asking our modern-states to unilaterally abandon espionage is equally problematic. Who goes first? Verification? Trust? Friendship. DeGaulle said it most honestly: Nations do not have friends, they have interests.

      I’m not going to spout Clausewitz or Machiavelli here. I don’t revel in this reality. But it is reality. And for all the righteous moralizing in the world, it will be the reality for the foreseeable future. Right now, in this country, the Chinese are exploring our entire digital infrastructure as a comprehensive campaign of peacetime espionage. We are doing the same to them. If you seriously think that one nation-state, in such a world, is going to unilaterally have a road-to-Damascus moment about not peeking into the neighbor’s windows and rooting through the neighbor’s mailbox, you’re focused on a higher moral universe than exists. I’m not a luftmenschen. I can hope in some general sense for some future, less nationalistic moral order. I can even pray for it. But right now, at this moment, I’d rather spend my time trying to rationalize the inevitable, and make that less dangerous and less threatening by degree.

      Sorry. If you tell Americans that having spy agencies continually gathering intelligence on our friends, our adversaries and all neutrals and you insist on it as scandal, you will get very little traction. Almost none. We can grieve for such, but it is so.

      Me? Knowing what I know, I’d rather focus on America’s foreign policy footprint in the world and reducing our actual reliance on militarism and force of arms, and in the present issue, make sure that the data-gathering is aimed at actual adversaries rather than at American dissent, which, after all, is necessary to rationalize our actual foreign policy behavior. Those things are practical. They don’t make for perfect and pretty essays on fair-play and morality. But you do what you actually can.

      Reply
      • The Proper Measure of "Workable Scandals"-2 says:

        This is a completely besides the point (that was made) response. It proceeds by completely missing or distorting what was stated quite explicitly and inserts an off the shelf set of ideas that are more rhetorical than substantive. The original post was hardly one moralizing about beating swords into ploughshares. So doing the whole “you are evidently an idealist who is real proud of your ideals (probably because you like waxing poetic or are a blowhard), but you have no sense or willingness to admit the nature of ‘practical reality’ (like me and others rational enough to be in the know) and probably have less sense of how irresponsible your ideals would be”-thing is underwhelming.

        The point made, again, quite explicitly was about your total and complete non-chalance about the extra-domestic aspects of any of this story. Now, of course, you are free to focus on what you want–b/c who can focus on everything (or, necessarily, care about everything). But this is curious–as the response initially noted–because rather insistently your point has been and is that you are isolating *the measure* for ‘rationally’ (based on ‘nuance’, ‘evidence’, ‘looking at the facts’, etc.) for what counts as being worth getting “mad about,” for what counts as “workable scandle,” for what measure should help us figure out if _The Guardian_ was initially making “bloviating” “non-revelations. Your whole recommended framework not only made remarking upon any extra-domestic implications of any of this for fools (meaning, not just pie-in-the-sky idealist fools but fools in general), it further made commenting until we had “evidence” of “linguistic-based capture” foolish (in so many words [that you stated both implicitly and explicitly]). This, after all, was your larger basis for deciphering that _The Guardian_ committed such a failure (the horror!) in calling non-discriminating (with respect to any single individual) metadata collection “indistriminate.” This, after all, is also why now you still call the original discussion around the Verizon court order “hyperbole”/hyperbolic.

        So the point is about your measure and its limitations. It is hardly about debating whether ‘the real world’ functions other than accord with poly-anna ideals. Rephrasing: the point was also about encouraging you to call out hyperbole and the like next time the media is found “bloviating” about how China is hacking the US. Or, in the alternative, if you don’t think that should be called out as “bloviating hyperbole” you might consider if the reason is that you have something more like the CFR-liberal’s point of view. In which case (as was also stated in the original post) owning that in a more forthright way would be wonderful. (This was also the point about the rather strained use to which you keep putting the legal-moral distinction).

        Finally, there is one last thing worth noting about the limitations of your metric, should, of course, it not really be geared towards the substantive ends of advocating the CFR-liberal’s point of view (“Of course we should bloviate about China. Do you want China running the world! Sorry, but *we* are the most responsible parties to do so.”). That is, namely, that scandal and the expression of outrage, surprise, dissent, shock, upset, and the like are diffuse things. Part of a *generally* active citizenry, and a half decent mode of political actions–including at its most *practical*–involves allowing that shock or outrage to breathe. Of course, here is where we will also come back not to how “practical” is your strategy of conducting a politics focused solely on the issue that has now finally (accept for the many if’s) been made a “workable scandal but rather to the substance of the politics (hence the importance about owning up to those “totem” like labels). Because by your measure and apparent stance if we can get the FISA court to be more transparent then we will have won and resolved this issue. (Whether that is any more ‘practical’ than whatever set of priorities seems questionable at best. There is no small number of ways that the legal moral distinction can guide a determination about the legality of the secrecy of the FISA court). But that just begs the question of what your measure was worth (or designed for) to begin with. Because, as per the other two links to _The Guardian’s_ reporting that I sent on in my original response–which were not about spying on nuclear-armed states but about spying on G-20 leaders [who are civilized people, after all; not like the Chinese or the terrorists--I'm guessing that many people around the world won't find your measure worth much. So it was food for thought about the framework of evaluation you have been setting up and insisting on at length. It was not a "long" waxing poetic "essay" about having polyanna ideals and not being "practical" (supporting the latter of which, in any case, does not follow from "knowing" anything special that "[you] know” but from what we all stand capable of seeing about how states operate).

        Reply
        • David Simon says:

          I read the original essay. I have read this one. You are in a loop of exquisite, righteous outrage. I stipulate as to your righteousness. Now:

          What is your proposal for ending the ongoing and continuing espionage practiced by all modern nation-states with regard to their neighbors, friend and foe alike. How do you propose to proceed? What should happen? Specifically? Speak to implementation, enforcement and verification. Get us out of this mess, using the current geopolitical reality and the actual means at your disposal.

          I understand, after all that verbiage that you are a morally superior creature, attendant to the immorality of nation-to-nation spycraft. I stipulate fully to the immorality. Always have. The original reference was indeed an acknowledgment of the inherent immorality. But please, show us how we can, as a world of political states with competing and often conflicting interests, take ourselves off the horns of this practical dilemma. Your proposal, please. Specifically. If it works of course, never mind espionage. Go directly to nuclear proliferation. Because a Nobel Prize awaits. Maybe the ultimate Nobel Prize, in fact.

          Also, with regard to your implication that I think G-20 leaders are any more civilized than the Chinese, get a grip. That’s offensive. Unless you were just stating that as your own viewpoint, in which case, get a grip. That’s offensive.

          In sum, you’ve entered into a detailed discussion about the NRA programming and the risks of it creating a surveillance state domestically. You, however, wish to talk about the NSA and its role in the world at large. That we address one and ignore the other doesn’t make us unaware of the moral implications of espionage, or oblivious to its ubiquity in the world, or denying of America’s elemental contributions to this sad state of affairs. It means we are talking about one thing, which is at a new frontier for our attempt at self-governance, and you wish to talk about another, which is distinct. And about that other, I have no practical solution at the moment. I admit that. Do you?

          Reply
          • The Proper Measure of "Workable Scandals"-3 says:

            1. It’s funny how you portray yourself as being all about “the evidence” and “the facts” and how in other strings you are talking about ad hominem. Yet consistently, you resort to underwhelming, besides the point, rhetorical sleight of hand when you don’t like what another points out. This is why in both of your responses you largely evade the issue raised and instead cast aspersion through acting like (in a reply on a blog post) the other person is trying to show off, prove themselves more high minded-than thou, and a moralizer. This is ironic for any number of reasons. Two chosen at random are that you are the one who has spoken various times about ‘nuance,’ ‘dialectic,’ Machiavelli, and various others big words/names. (Has anyone sunk to your level for your doing so?). Another is because you keep acting like you are above rhetoric, personalistic attack, and the like (unless it is warranted b/c someone has attached you), which is laughable. Going back to your initial lambasting of _The Guardian_ you were climbing the heights of rhetoric in what you were saying about them and Greenwald (and then afterwards you claimed you were doing no more than calling out irresponsible journalism in a very narrowly focused way).

            2. A. I reiterate what I have said twice in the response comments above. From your first blog post on you have been saying left and right that others are foolishly or hyperbolically not focusing on *the only* issue (in effect) that matters in all this. Because most (all?) of the other issues are non-issues in one of two senses according to what you have been suggesting over and over: they don’t speak to anything ‘illegal’ /unconstitutional that has been discovered and/or because ‘practically’ speaking the way politics works is such that advocating for (or, correction, if you are a journalist-cum-editorializer ‘hyperbolically bloviating’ about) those issues is a misdirection of energy (or futile or to be a rhetorical idealist who is megalomeniacally angling for a Nobel Prize, not just in the pages of _the Guardian_ apparently but also through penning a treatise in the comments section of your blog).

            B. This framework you recommend for what kind of reaction is ‘worth’ having and by extension appropriate to channel into some form of action or advocacy or, really, public discussion is DEFICIENT. Or at least this was what I claimed and reiterated, only to then be attacked by you now twice in a rather juvenile way (“You are such moralizing fancy pants! Take that.”)

            C. If you think saying what I did in my first response (“The Proper Measure of Workable Scandal”) is ‘academic’ or nobel prize-seeking in addition to be juvenile I’d say it is rather strange. Neither in a blog post or its comments are we organizing a street demonstration, storming the bastille, calling our congressional rep, or organizing two days of lobbying in the Russell building. We are, at best, raising consciousness among ourselves and whomever else might be reading. There is nothing inherently ‘practical’ about what you have posted. There may be a blueprint for ‘practical action’ but that is a different matter. In any case, I was not accusing you of not being practical enough. If anything, I took your ‘practical’ proposals and framework for figuring out what to do quite seriously. That is why I responded to you specifically about what seem to be the deficiencies of the framework you have been presenting for how we should determine our actions. (Actually, you have really just been presenting a framework for how we should determine our attitudes. You do the whole “I am about practical courses of action” thing when you want to denigrate those who criticize you.) Moreiver, just keep in mind that you originally called out the media for ‘hyperbole.’ Even if nothing else, whatever I have said to you in the last couple of responses in this string was no more than calling you out for something that seems to be no less problematic than hyperbole.

            D. As for what I have said, now twice, it was that your ‘framework’ (“Now we have a workable scandal”) seems to make most of the other issues irrelevant. More than that, you have *seemed to be* (perhaps I’m wrong, I’m just going on your words. And, to me at least, they have been disappointing or alarming) very loudly and proudly non-chalant about any extra-domestic aspect of this. After all, it is not just Americans whose metadata or communications are being pried into. Moreover, it is not just the terrorists who I don’t doubt only the non-Nobel seeking men of action like you are willing to stand up to. It is also many other ordinary people around the world, as well as big wig G20 leaders. It is also citizens of other counties who might have different constitutional frameworks about metadata collection (than the one you’ve made so clear makes this no big deal in the US) and who might be upset that our country and theirs are forging (being coaxed into?) security alliances. There are any number of other issues that circulate quite closely around the themes of privacy, improper/upset causing surveillance, that involve non-Americans. If your framework for evaluation, what it suggests for ‘practical action,’ and state of mind is nothing but nonchalant about all those other issues–which it certainly has been–I have said that is a big problem, in my opinion. Moreover, if it is only linguistic-capture that is the offense, still it is not just Americans being subjected to that. Now, perhaps you don’t care because it is only Americans for whom ingress into their linguistic data is a “legal” offense (in your eyes). In which case, what I also said was that I encourage you to say so. (Recall the point about the CFR liberals). But at the very least, the violation of other’s (merely, to you, at best, ‘morally-based’ right to privacy) might rate a mention. Or at the least some slightly less loud and proud nonchalance. (And if you don’t think you’ve been nonchalant go back over your posts. It won’t be hard to find more evidence than you have had for originally calling out a journalist’s use of the two words “indiscriminate” and “sweeping”).

            3. A. As for your question: it is a non-question. I never mentioned espionage in order to enter into a policy discussion of that. I simply expressed alarm about how nonchalant you are about that matter, especially as this story keeps breaking in new directions that are raising reasons to be nonchalant on a day to day basis.

            B. But be that as it may, let’s take up your question but in a slightly different direction. About what I am ‘proposing’–i.e. about “let’s talk practicalities” rather than trying to seek Nobel Prizes. You are acting, when it suits you, like you are deciphering the only feasible course of “practical action,” the failure of others to prioritize this being their failure or inability. But quite evidently, it has not taken a narrowing of the issues of the type that you have been proposing to have made progress on the *one* aspect of this story you think is worth mention or maybe just feasible/realistic to work on. The CNET report you quoted yesterday came out less than two weeks after the “media” started its hyperbolic bloviating. Even without any sharply focused argument of the type you are recommending, it would seem that what is ensuing now is almost the natural course of the political response that we could have expected from Congress. This, moreover, is precisely the one you are asking for: calls for increased transparency of the FISA court and its processes. It is no accident why that should be so: that kind of call for reform is the lowest common denominator proposal. How much *less* could one hope for than that? (In pointing that out I am hardly saying that even this hope will be fulfilled. To secure it we will also need concerned public outcry and action. But to secure it we definitely don’t need to button ourselves up in the way you have been, like an aggressive hammer, suggesting).

            C. Let me reiterate that this lowest common denominator variety of action is not coming about because of anything your-type-of-position has somehow inserted into the consciousness of the lawmakers. They were not and are not likely to be so overwhelmed by how right on and non-bloviating your-type-of-position is that they suddenly see or are likely to for that reason further see the light and only therefore stumble on calling for “transparency.” So it seems to be you who has the wrong ideas about how politics “in the real world” ‘practically’ works.

            4. Therefore, what is a preemininently non practical variety of politics, as is pretty plain to see, is the one you have been advocating. “Let’s focus ultra-narrowly on nothing more than this one particular thing, either b/c everything else is legal or just a pipe dream. Let’s as a general public in our mutual discussion not even *mention* it (presumably, b/c if we do who knows what censure the David Simon’s of the world and/or the CFR liberals will have at the ready. As the lambast us as bloviators or mock us as people who don’t ‘understand’ the way the world works).” This is pre-eminently non-practical b/c the one issue you have been saying is worth focusing on is also the one that ***practically*** will be the only one “the lawmakers” are willing to focus on even if left to themselves (of course, not without some pushing and struggle; but even more important than that, not without continued *general* outcry and bloating and upset that has a genuine opportunity to ‘breathe’, which will hardly happen if we follow your overall attitude, at least as displayed in your posts). Finally, In pointing this out, I’m not failing to applaud those congresspeople that are now or may in the coming days/time call out a lack of transparency, especially in the FISA process. So let’s just keep that in mind: because as per my original response, the problem I was raising was with the whole framework you have been presenting to us the past couple of weeks.

            4. I’ve probably said too much already, especially b/c the whole rhetorical game you seem to have set up is one in which if another says what you don’t like you cast them as some fancy pants seeking a Nobel Prize. Part of how you do that is by saying they have said too much. (That allows you to call what they have said an ‘essay’ and etc.). Moreover, indented replies give the respondent even less room to respond without seeming to be penning an even longer essay than the last. So while one might want to say a few other things, at least for this reply, I’ll leave things here. And even if not good enough for a Nobel, maybe I’ll get a gold star so the fires of my ego can be stoked, still. And then the practical folk like you can do the heavy lifting. (Since I guess it is all the letters to the editor, and calls to Congress, and all the making known to them that we understand that metadata collection is just like a wire tap but linguistic-capture is over the line that has educated some of them and thereby helped to figure out that we need more transparency–and maybe even, eventually, in the FISA process.)

            Reply
            • David Simon says:

              Last word is yours. After all, you used so many of them, I’m loath to keep this going.

              But we must disagree as to yourrhetorical approach, which I don’t think serves the actual discussion. And clearly, you believe the same of mine. Nothing can be gained by attempting to progress this.

              Reply
          • The Proper Measure of "Workable Scandals"-3-Addendum says:

            And the bit about the G-20 leaders being civilized, was–quite obviously–a rhetorical flourish. What it was beyond that was to be wary of the rhetorical hammer you would likely have been to deliver ( judging from other comments you have made) were one to have said anything that might be construed as claiming it is not okay to spy on those who come in for your opprobrium. You have, several times in your comments, wielded the club of how there are real terrorists in the world (and presumably other evil doer-esque parties). One doesn’t want to be accused by you of being an apologist, on top of being a moralizer. Since it goes without saying that the G-20 leaders are not the same variety of non-freedom loving evil doers, they make the *best case* for questioning your non-chalance over the extra-domestic aspects of this developing story. I hope that clears things up.

            Reply
            • David Simon says:

              I’ve made no distinctions between nationality, race, religion whatever. Not anywhere on the blog.

              Call what you just did a rhertorical flourish if you wish. To me, it was race-baiting. And I don’t rise to that kind of bait. Instead, I called you on it.

              You’re off the charts here. You don’t want to own your own tone, or answer the direct questions that your line of reasoning produces. You like to sneer, though.
              I’m telling you sincerely, you’re a little angry to be enjoying this website as intended, and certainly, no one else is going to have much fun engaging you. When you are making
              excuses for your own excesses by suggesting that you being “wary of the rhetorical hammer you would likely have been to deliver…” Well. Take a step back, and maybe a deep breath. And let’s move on, please. This goes nowhere that can matter at this point.

              Reply
              • The Proper Measure of "Workable Scandals"-4 says:

                Race-baiting? That is ridiculous. Sorry, but there is a discourse that exists, implicitly and explicitly, about the evil-doers and the terrorists and assorted others who we are near constantly told stand against freedom. Referencing that reality is not attributing “racialist” overtones to you (though the racialist overtones definitely are there in that ‘discourse’). That you have been drawing on those kind of divides to make your your non-chalance about any violation of non-Americans emails, communications, etc. seem completely right on has been your own choice. This, of course, was why the question I raised was about looking beyond what are, to you, the***really*** easy cases. That is why the question attached to pointing out the deficiency of your metric was the following: how about all the other citizens of the world whose privacy, metadata, or linguistic communications are being violated (perhaps even by their own laws)? Hmm. Maybe the members of the Hong Kong legislature expressing a similar point on Monday are also just people who you would have no patience for.

                It is you who hasn’t or, obviously, can’t engage with the issue raised. (That’s okay: I am just flagging it for anyone else who might read through the comments more than demanding you respond.)

                The *problems* concerning privacy, surveillance, and what falls under the rubric of civil rights (and 4th amendment concerns in American law) that have been raised by these revelations are not exhausted by the outrage or issues you have suggested are the only ones that rise to ‘workable scandals.’

                I don’t think that is (or was) angry. But I can see why you like to try to dismiss things through that kind of device…

                Reply
        • Max H. says:

          “The Elements of Style” by Strunk and White. Please.

          Reply
  17. Michael G says:

    David is spot on with how critical the line is between real and speculative abuse. On whether we can prevent terrorism, there have been some troubling arguments thrown around that need to be addressed, downplaying whether these data mining systems are necessary.

    Some argue that the NSA programs should be shut down because they obviously don’t work- they couldn’t prevent a couple of Chechens from bombing the marathon, so aren’t worth sacrificing any degree of civil liberties.

    Many of the arguments against the data-mining in essence maintain that if terrorists have succeeded in certain cases- like Boston- then looking at phone records can’t prevent terrorism.

    This is (or should be) obviously counterfactual, as most law enforcement prevention is thanklessly boring- the potential harm doesn’t happen, and we don’t even know it didn’t. You might prevent a hundred deaths from tireless patrolling (physically or digitally) but the one that gets through is used to ‘prove’ that the policy has failed. This is a pretty basic logical fallacy that I’ve seen all over the webs this week and does a disservice to the real debate.

    Then there’s the statistical argument. ‘Terrorism is not that bad, relatively. Because more people die from not wearing seatbelts or gun violence, we shouldn’t worry about terrorism.’
    Actually, there seems to be a 100% rate of death, so not sure why we try at all. In seriousness, yes, in some big picture ways we are over-reacting the threat from terrorists. It’s not existential. There has been overreach on the security side, and overestimation of the threat posed collectively by terrorists, that has led us into irrational and damaging pursuits abroad (see exhibit O for obvious). And Americans have a strange propensity to worry about flying or terrorism while sending texts going 90mph on a freeway.

    But to argue that we should ignore terrorism because it’s less deadly than driving ignores the fact that terrorism is infrequent but has the potential for large death tolls and even economic collapse, and there are people on the planet who are indeed seeking such large scale destruction.
    9-11 was horrific- and a far lower death toll than it might have been. Change the parameters a little- later in the day, hitting lower in the buildings, the 4th plane finding its target- and it might have equaled ‘all driving deaths’ for the year. But whether it’s 3,000 or 30,000 isn’t the point – should we try to prevent significant loss of innocent life? Well, yeah. Can these systems and approaches help do that? It appears so. Can they work while allowing total privacy? No. Can we use them without destroying our way of life or civil liberties? I believe so.

    What deaths are possible to prevent is what much of the debate ignores. A lot is impossible: some degree of traffic deaths, mass shootings or lone wolf terrorism attacks, or airplane crashes, are inevitable in modern society. But some attacks can and have been prevented, and we’ll likely hear this week about some of them, especially larger ones that by their nature require communication or movement between a network. As long as the potential of a group of disgruntled human beings to get their hands on a nuclear weapon (see AQ Khan) or deploy nerve gas in a subway (see Aum Shinriko) exists, I sure as hell want my government to use modern technology to spy on these groups and try to prevent it. Not at any cost- not at the cost of other innocent lives being destroyed, as is uncovered frequently with death row inmates or by those in legal limbo in Guantanamo.

    At the point such abuse against innocent lives is uncovered (not “common sense tells me it is”, or “I distrust the government and they MUST be doing it…”), I will be outraged and call for significant changes. Until then this theoretical outrage or fake ‘whistle-blowing’ over the potential for abuse abuse is a weak vintage compared to the taste of a large scale attack that may be prevented by connecting the dots.

    We need to remind ourselves that many survivors of 9-11, and the Boston marathon, are living through a lifetime of physical and mental anguish. I will happily give up total privacy (as I have already being filmed every time I leave my house) including my call records, to prevent that, and empower my elected government- with proper care and oversight by my elected officials- to look for connections in the data and dig even deeper as the situation merits and the courts allow.
    The anti-surveillance crowd fundamentally undermines its credibly by failing to muster a single credible example of real harm that has come from this program, versus other very obvious and very real failings of the US government and legal system abroad and at home that have ruined US citizens’ lives and should rightly be fought. Instead they say vaguely that it’s about “what sort of country we want to live in”.

    This is juvenile nostalgia for what never was – and in the digital age, never will be –masquerading as genuine argument, as embarrassing coming from liberals who will rightly ridicule Fox News but promote breathless fear-mongering. It’s no different from right wing yearnings for a non-existent ‘American-ness’ used to enforce an ideological view of the US as a certain indefinable thing under threat.

    Reply
    • Cyber vinnie says:

      I’m not sure if you were referencing my comment, but let me first say that I erred in suggesting that the goal of surveillance is to make us 100% safe as I think we all know that is impossible. I do not however think it a logical fallacy to accept that we are unable to prevent every terrorist act and at the same time draw a line in the sand to say we will not sacrifice certain principles for the sake of chasing the diminishing returns of “security”.

      I am content to allow the collection of metadata, which is certainly sacrificing a civil liberty, but collecting conversations without a warrant is a line I am not willing to cross for the sake of security. I made the mistake of suggesting an absolute in my argument, but the reality is, as with most things, anything but.

      Reply
    • David Simon says:

      And there you have it. Another media overreach, this time with an assist from an ambiguous congressman.

      But the discovery of misuse can happen. For me, that’s the thing to address and be prepared for. The metadata nonsense, nope.

      Reply
      • Thom says:

        Nadler’s statement:

        ‘Update Rep. Nadler in a statement to BuzzFeed says: “I am pleased that the administration has reiterated that, as I have always believed, the NSA cannot listen to the content of Americans’ phone calls without a specific warrant.”’

        That’s about eight million miles from ‘CNET misunderstood me,’ or “That’s not what I was saying.’ Why it’s couched at all in “I am pleased that the administration has reiterated that…” is pretty bizarre, and says a lot by itself, don’t you think?

        But you’re just into facts, I know, I know!

        http://www.buzzfeed.com/andrewkaczynski/video-congressman-claims-he-was-told-government-could-listen

        Reply
        • David Simon says:

          What do I think, Thom? Well, Occasm’s razor. I think that Nadler — the only guy in the room, including all his colleagues who heard it one way — has finally been told he fucked up and how he fucked up. That would be the simplest explanation.

          I’m sure you can put the truck in reverse and go the wrong way around the block. But when everybody else in the congressional hearing isn’t backing you up, and when the government is not rushing to make explanations for itself, and the director of the FBI is looking at you as if to say, “what the fuck are you talking about.” hey, it’s probably you. not a conspiracy of silence in which Nadler’s dose of thorazine wore off and he told the truth until they could get him into a black helicopter and inject him again.

          The guy threw something up wrongly and CNET went with it. And now, we’re back to where we were.

          It can happen that the NSA violates the Constitution. It may well happen. It’s good to pay attention. But right now, this just fell on its ass.

          Reply
          • Thom says:

            I think that’s EXACTLY what happened. I think Nadler was told in the secret briefing what CNET said, and that he was told probably very rudely late last night that he just revealed very, very classified info.

            “I am pleased that the administration has reiterated that…” is comedy gold. And also a taunt.

            And the government is very much rushing out to explain. You’ve probably seen that by now.

            Reply
            • David Simon says:

              Oh. Ok.

              Reply
              • Thom says:

                Ha – I misunderstood what you meant by ‘fucked up.” Oh well.

                Nadler’s statement is not a refutation of *what he said*, nor is it anything like a refutation of what CNET said he said. It’s just not. It says, “Well I’m glad the administration is saying that.”

                I don’t think it’s terribly wrong to try to parse such statements. You perhaps do.

                Reply
                • David Simon says:

                  Yesterday: Allegation that NSA wiretapping Americans without warrant.
                  Today: No proof of allegation. Individual making allegation produces no corroboration,
                  and says he is now satisfied that no wiretapping is happening, refusing to maintain allegation.
                  No others come forward to corroborate his earlier claim of having been told the allegation at a hearing.

                  You: I want to believe what I want to believe. Let’s look for a reason that we don’t need proof to still believe the allegation.

                  You’re being ridiculous. I’m due back in the empirical world. You can remain here if it suits you. Not me. Gone.

                  Reply
                  • Thom says:

                    That’s not an accurate description of what happened. There was not an “allegation” made yesterday. There was an interpretation of comments. An interpretation still disputed.

                    That makes your “No proof of allegation” meaningless, unless you meant Nadler’s statement, which was made last week.

                    And are you going to act like Nadler’s comment just doesn’t exist? Or that it has no meaning for us in this discussion whatsoever:

                    “We heard precisely the opposite at the briefing the other day. We heard precisely that you could get specific information from that telephone simply based on an analyst deciding that and you didn’t need a new warrant. In other words, what you just said is incorrect. So there’s a conflict.”

                    Are you going to further ignore that that directly followed questions about *content*? And call this matter done and dusted?

                    http://www.theatlanticwire.com/politics/2013/06/jerrold-nadler-does-not-thinks-nsa-can-listen-us-phone-calls/66278/

                    Reply
                    • David Simon says:

                      Unconvinced. Utterly. Semantics aisde, the CNET story is currently uncorroborated shit.

                      Back to empiricism and corroborative fact-gathering. Later for this. I’m done, Thom. Agree to disagree.

          • Thom says:

            ‘In addition to Nadler’s comment, White House Chief of Staff Denis McDonough on Sunday called Snowden’s claim incorrect during an appearance on the CBS program “Face the Nation.”’

            http://thehill.com/blogs/blog-briefing-room/news/305855-house-dem-nsa-cant-listen-to-calls-without-warrants#ixzz2WQ6R8QD0

            Reply
            • Other David says:

              The Administration lacks credibility. The DNI perjured himself before Congress for Christ’s sake! This implies that even the highest levels of government feel that it is okay to lie to the public in order to protect a secret program–even under oath! And McDonough was just on a TV show.

              Do I think that there is a huge scandal here? No. But unless the DNI is removed and then charged with perjury (and not pardoned), there is nothing the Administration can say that I will believe without strong supporting evidence. Their reassurances mean nothing right now.

              Reply
              • David Simon says:

                I agree that the DNI should not have lied. I think he should have said excuse me, gotten up and walked out and risked contempt of Congress, instead.

                If the program was a national security secret — and it was — and if the question was framed in such a way so that there was no way to explain that it was only raw data, assembled not as dossiers on individual Americans, but as an anonymous datapile within which to search for needles without, in fact, revealing the nature of the program — and the question was so framed by the knowing legislator — then it had no business being asked outside of a closed, intelligence committee meeting.

                The lie was dumb. The question, dumb, too. Dumb all around.

                Reply
  18. Martin Fowler says:

    Well this comes from Some Random Person On The Internet, but a quick read of it makes me pretty happy that the CNET piece is flaky http://littlegreenfootballs.com/article/42138_CNET_Says_NSA_Admits_Listening_to_US_Phone_Calls_-_But_Thats_Not_What_the_Video_Shows. So it seems we can put our tinfoil away (although I’d make sure we put it somewhere handy).

    Reply
  19. Mike Dixon says:

    a little elucidation on the Nadler business from Josh Marshall at TPM. The whiff of bullshit or misinterpretation I caught from this at the beginning gets stronger. And yes, I did post a link to the CNET piece just after I first saw it, in a misguided attempt at “told ya so”. What I have learned since has caused me to have a more jaundiced view. Mea maxima culpa.

    http://talkingpointsmemo.com/archives/2013/06/is_that_new_nsa_story_accurate.php

    Reply
  20. martinb says:

    “still waiting to see if the allegation illicits either confirmation or pushback”

    Elicits.

    I’m an English teacher, couldn’t stop myself. Hands have been itching to get at the red pen for several minutes now, thought it best to release tension…

    Reply
    • David Simon says:

      Of course, thanks. I’m an ex-crime reporter, so I know illicit when I see it. But as you can see, I’m required to type fast, not proofread.

      Reply
  21. achilles3 says:

    Boy I hope “they” are “listening” to us right now!

    Reply
  22. Stacy says:

    From my perspective, we all could have prevented this. Obama and Congress renewed the FISA act last December, and apparently the act included an extension of warrantless wiretapping. Senator Wyden has been trying for years to get a couple of modest amendments attached that would have required the administration to reveal the scope of the spying. But no one–including most of the mainstream media–was paying close enough attention. (I include myself in this, as a citizen.) The only real critique came from the ACLU. Maybe if we had paid closer attention when it really counted, Wyden would have had the political will behind him to force those amendments to pass. Back then the conversation could have been sane and more about how to find a workable solution everyone could live with. But no. The story had to come out the way it did and instead we get a national conversation based in paranoia. Again.

    And in some ways, I blame the media. Maybe that’s not fair, but I can’t help but feel the mainstream media in this country hasn’t exactly been on the ball with this. We could have done something about the scope of the spying when the act was passed. Maybe a minor thing, but a thing.

    Reply
  23. Golly says:

    I don’t reserve my protest for the stuff that is illegal. We differ there perhaps. I think much of our law, policy and practice in the name of national security is utterly offensive and doing more damage than good. I never supported it.

    I think the injustices various agencies manage to do with numbing regularity with probable cause in hand already is enough of a national scandal, if only the press would pull it together and press the point harder.

    I think more innocent lives have been destroyed than terrorists have been caught because of these programs

    Also there has been a lot of reporting on the possibilities of cooperation between nations on spying where, say, the UK spy agencies could gather stuff on U.S.-based targets for us, to work around limits on domestic spying by agencies like NSA and CIA.

    I really think Diane Feinstein is drunk on spying too, by the way.

    If the CNET article is true (I’m guessing it is) it’s just the latest horror. I hope it is true because it will prompt protest from all camps.

    As far as I am concerned, the only thing White House, Congress, NSA, FBI and Diane Feinstein aren’t listening to is our calls for help.

    Reply
    • David Simon says:

      Not sure Cnet is holding. But I’m glad I cited it, because it is indeed the line that can’t be crossed, in terms of constitutionality and in terms of a real affront to privacy and civil liberties.

      Again, the use of metadata and its non-issue as a function of privacy has zero to do with national security. it isn’t a special exception law that is part of FISA or the Patriot Act. It was a Supreme Court decision dating back decades. Portraying it as overreach from the war on terror is just inaccurate.

      Reply
      • Golly says:

        Re phone metadata — Not one of the people you need to convince and I pity you the work you have had to do informing everyone of that. I’ve been aware of the laws on that for a long time, regardless of whether I agree with the collection of that particular data or perhaps particular interpretations of the laws addressing it.

        I am aware we have been talking for the last couple of weeks about phone metadata and Prism and that they are two different things

        Reply
      • Golly says:

        Also, I have a sinking feeling we are getting into Nixon Plumbers and Fawn Hall/Ollie North territory — that NSA might be getting deeper into lies to Congress. AP story just issued in last couple hours, headlined something like ‘NSA programs thwarting terror in 20 countries.’

        Read it and see if everything in it is consistent with everything else we learned this past week. I couldn’t make heads or tails of the thing.

        Reply
  24. europe says:

    “The data-mining of the internet — if it’s targeted overseas? No, NSA has been acquiring overseas communication for decades. That’s its legal, if not so entirely moral role (gentlemen do not read each others…)”

    Nothing to get upset about then. Only a couple of billion peoples privacy to intrude on.
    I hadn’t thought that mr Simon was the kind of person who operates with a world view like this
    http://strangemaps.files.wordpress.com/2007/02/newyorker2.JPG

    Reply
    • David Simon says:

      And the Chinese and the Russians and the Europeans on each other.

      When the parabolic antennae was invented a few decades ago, do you think there was an intelligence service in the world that said, “No. That’s wrong. We’re not going to buy any of those.” Simon’s world view is actually of the real world. And this argument — the entire argument — is about a surveillance state — a nation’s capability of spying on its own people, which is a different issue in terms of security v. liberty. When you spy on the neighbors you are a busybody. It’s rude and unseemly. When you spy on your own family, the trust within your own household suffers. And given the added reality that this is spy v. spy, with carious countries chasing each other’s officials and state secrets, and not the secrets of the average citizen, you really have your nose in the air as if the last five hundred years of nationalism didn’t actually happen. Come down from the magic kingdom and participate in a discussion of what is real, and what is actually possible at this point in the state of human affairs.

      Reply
  25. J says:

    These allegations are the same as Snowden’s original allegations, which you’d effectively demolished. How does this change anything?

    Reply
    • David Simon says:

      Jesus, read the CNet story before you go down that bad road. Even that account goes out of its way to separate this new allegation from the phone metadata storage project. If true — and the jury is still out — this is wiretapping, and not of that data. This would be straight-up domestic wiretapping by a national security agency.

      The hype that I went after, I went after. And the metadata program, as described, is a program worth defending.

      Fitzgerald’s dictum: The sign of a first-rate mind is the ability to hold two seemingly opposing ideas in one’s head at the same time. And these two aren’t even in very much seeming opposition, yet your head seems to be ready to burst.

      Reply
  26. Amy Goodwin says:

    Life is very circular but lurches forward. Issues repeat themselves. Take this Washington Post article published in 2007.
    http://www.washingtonpost.com/wp-dyn/content/article/2007/05/15/AR2007051500864.html
    I’m sure we’re in for hearings and resignations if this story is indeed accurate.
    The one thing I love about “The Wire” is Mr. Simon exemplifies how people in a system protect that system, especially if their livelihoods depend on it. I have to believe that most of those folks who are somehow involved in this “scandal” are ethical. (Particularly any analyst who might have listened to my phone calls.) I have to believe they were trying to do the right thing. In fact, they believed they were doing the right thing. I am also aware that denial is one of the most powerful defense mechanisms. It is human nature to sweep problems under the rug and hope they will go away. And darn it, if it isn’t true- most problems have a way of working themselves out. But this pile, under this rug…well. That said, I am thankful there is accountability in this country, and I’m thankful for people who care enough to step outside their microcosms and take an interest on how this country is run. During 9-11 I was a therapist at a psychiatric hospital. As the planes were crashing into the towers, we therapists were trying to shield the patients from the news. They were already so depressed, we didn’t think they could handle it. When we got to the patients, we found out most of them already knew, and it was only a bleep on their radar. They were so bogged down life struggles, they couldn’t borrow another person’s misery. Everyone who comments. Everyone who takes time to read these posts… or Tweets… or reads news articles…no matter what a person’s stance, they are engaged. From a mental health standpoint, that is very healthy.

    Reply
    • David Simon says:

      Thanks for that. I remember when the NSA-domestic line was first blurred immediately after 911, and I remember when they shut it down a few years later, with the Justice Department rising to the test. But that tale itself is like a stage play. Amazing stuff.

      Reply
  27. Sergio says:

    Both statements “NSA is forbidden to spy on Americans” and “Nobody is listening to your calls, it’s just metadata” are wrong, and it’s been known for a while.

    “shortly after the Sept. 11 terrorist attacks, President George W. Bush secretly authorized the NSA to plug into the fiber optic cables that enter and leave the United States, knowing it would give the government unprecedented, warrantless access to Americans’ private conversations. Tapping into those cables allows the NSA access to monitor emails, telephone calls, video chats, websites, bank transactions and more.”

    “With Prism, the government gets a user’s entire email inbox. Every email, including contacts with American citizens, becomes government property.
    Once the NSA has an inbox, it can search its huge archives for information about everyone with whom the target communicated. All those people can be investigated, too.”

    http://m.apnews.com/ap/db_289563/contentdetail.htm?contentguid=Oyorf9mT

    Reply
    • David Simon says:

      Yes, the NSA was brought in to domestic counter-intelligence in the immediate aftermath of 9-11. The part of the story you left out is that less than three years later the Justice Department itself objected to the terms of that change, saying it was unconstitutional. John Ashcroft’s finest moment, apparently, given the narrative of the 2007 Washington Post story that Amy just posted elsewhere on this thread. The government righted itself on that occasion, at least enough to satisfy the Justice Department’s Legal Counsel. So your cite is not the existing circumstance to anyone’s knowledge right now.

      Yes, Prism and the issue of the internet is separate and distinct. And needs to be treated so. There, the metadata is the content, particularly with regard to non-public post, person-to-person e-communication, this should be a concern. It is with me. This is not the case with the phone metadata. Also, at this point, NSA is claiming that Prism is aimed overseas only. To be continued, of course.

      Reply
      • Sergio says:

        I respectfully disagree and, even knowing how tired you must be of following various links posted by all the participants, I’ll post two more to make my point. Which is, it was never just about metadata. NSA intercepts our calls and electronic communications (the line is really blurred these days, with VoIP and Skype in the picture). They don’t have to do it illegally since the government wrote the new FISA 2008 (FAA) in such a way that there is, really, no oversight worth talking about.

        Two quotes, with the sources.

        “Under the FAA, which was just renewed last December for another five years, no warrants are needed for the NSA to eavesdrop on a wide array of calls, emails and online chats involving US citizens. Individualized warrants are required only when the target of the surveillance is a US person or the call is entirely domestic. But even under the law, no individualized warrant is needed to listen in on the calls or read the emails of Americans when they communicate with a foreign national [or rather, against persons believed to be outside the United States -- the infamous "51% certainty"] whom the NSA has targeted for surveillance.

        As a result, under the FAA, the NSA frequently eavesdrops on Americans’ calls and reads their emails without any individualized warrants – exactly that which NSA defenders, including Obama, are trying to make Americans believe does not take place.”
        http://www.guardian.co.uk/commentisfree/2013/jun/19/fisa-court-oversight-process-secrecy

        And another one, which seems to me even more troubling:

        “Indeed, to the Government’s knowledge, no court has ever suppressed FISA- obtained or -derived information, or held an adversarial hearing on motions to disclose or to suppress,” the government added.

        The government filing also indicated that the wiretapping of Moalin began without a court order, under a provision of FISA that allowed the feds to conduct warrantless surveillance of content for up to 72 hours in an emergency, before getting authorization from the Foreign Intelligence Surveillance Court. The FISA Amendments Act has since expanded that window to seven days

        “At the time of the emergency authorizations here, FISA provided that in emergency situations the Attorney General may authorize electronic surveillance and physical search without an order from the FISC,” wrote the Justice Department.
        http://www.wired.com/threatlevel/2013/06/nsa-defense-lawyers/

        Notice that the case discussed here had no signs of “emergency” – some guy was (for quite a while) raising money for some militia in Somalia, which was not posing any threat here in US.

        So what’s there left to argue about? NSA didn’t “admit” anything, it’s all in the FAA. The law itself is not classified, — but all decisions based on this law are, and they are not disclosed even to defense lawyers with government issued security clearances. Welcome to the police state. J. Edgar Hoover, in his wildest dreams, couldn’t imagine the kind of surveillance power brought on by our technology and by totally blown out of proportion “terrorist threat”.

        Reply
  28. Other David says:

    My reactions:

    #1: There may be a scandal here! Dig! Dig! Dig!
    #2: A Congressman leaked this? It seems unlikely. CNET isn’t the most reputable name in news. They even had a scandal of their own a few months back where their corporate parent restricted them on covering certain stories.

    In any case, if true, this is just an extension of the previous abuse by creating general warrants or writs of assistance, which are forbidden by the 4th Amendment (and expressly forbidden by its motivator, the Virginia Declaration of Rights).

    I do have to wonder about your logic in this case, though. You stated before that datamining was an acceptable tool due to the threat of terrorism. It seems to me that this is basically an ends justifies the means argument. Presumably if there was no threat of terrorism, this datamining wouldn’t be allowed. But if the threat was grave enough, would more extensive intrusions be allowed, up to and including what was discussed in the CNET article (after all, you painted this as an “intelligence asset” not as a violation of privacy)? You used the word ‘threshold’ but your previous argument was based on threats. Wouldn’t the threshold move? And how have you judged that the threat of terrorism falls beneath the level of intrusion that is currently being used?

    Reply
    • David Simon says:

      Actually, as phone metadata has been legal for three decades of U.S. communications law, I’m not anywhere in the neighborhood of ends justify the means. An illegal wiretap is exactly that. Hence my picking my head up and noting this particular claim. It’s where I draw the line.

      Again, every law enforcement asset can be used or misused. New technologies are going to be with us forever, coming fast and furious. You can go head into sand and pretend that new technologies don’t have real-world applications for law enforcement or national security, and you can prohibit their legit use because of the obvious capacity for misuse.

      Or you can work to rationalize the democratic processes so that use is applied and misuse punished and made vulnerable to independent, credible oversight.

      The first option is a fool’s journey, in my opinion. The second one is the hard work of governance and reform, but it is systemic and therefore, meaningful and purposed to the reality of the future.

      Reply
      • Other David says:

        I think you are going too far here with the claim that phone metadata has been legal for three decades. Has it been legal to search in a completely general fashion when there has been no evidence of a crime? Have the courts ordered no targeting or restrictions to its collection? Or has the metadata collection been directed at a crime and of a limited scope? I don’t think there would be the controversy we are hearing today if it the public was fully informed that all metadata was being collected even without a suspicion of a crime. Furthermore, why was a PATRIOT Act provision required to authorize it if it has been legal to collect for three decades? I’m thinking that removing the limits on suspicion and scope (which are required for any search) might have had something to do with that last part.

        And as far as your suggestion of governance and reform, I applaud this suggestion! But it doesn’t work if key processes affecting the civil rights of people are kept secret. Removing secrecy gives terrorists and criminals some advantage in knowing how they are being watched (or that the capability exists). But our political system can’t work in secret, with secret laws and secret court decisions. If we decide to perform these types of searches, it should be because our political process was fully engaged, not because the Executive Branch bullied everybody into compliance over “national security”. In my opinion, we as a country overreacted to the threat of terrorism and are still overreacting. I don’t think this level of intrusiveness is necessary and I think it was only created because politicians were trying to cover their asses just in case there was another terrorist attack. There are far greater issues than terrorism, including gun violence that we wouldn’t even consider deploying this level of intrusiveness. But if you let it leak that the NSA was letting the ATF have access to the program, I guarantee it would be shut down in a week.

        Reply
        • David Simon says:

          And I disagree.

          It’s been decades since U.S. telecommunications law has allowed investigators to grab metadata off of say, a cell tower, for weeks and months on end — that’s tens or hundreds of thousands of calls by innocent Americans uninvolved in criminal activity. I keep informing folks of the reality, and posts such as yours keep arguing what folks think should be so. You have no Fourth Amendment right to privacy for your phone metadata. U.S. legal history going back decades has declared that since you offer this data to a third-party provider — the phone company with whom you contracted — it is not protected.

          You want to think that you can violate the privacy of tens of thousands off a cell tower, but not tens of millions? If it’s a privacy violation for one, then it’s a privacy violation for all. If not, not. Scope doesn’t matter here — in fact, a wider scope argues for even more legal validity.

          Why are DWI checkpoints legal? Because they stop every single car. If they discriminated, then no, not legal.

          You’re just wrong on this. Read elsewhere if can’t bring yourself to believe me.

          Also, let’s be honest, there is a white-people freak-out going on here. And shame on us for that. This technology and this legal standard was okay when it’s going on at pay phones and cell towers in, say, West Baltimore. But you mean they’re capturing my metadata? Now, hold on, don’t I have some privacy? Sheeeet.

          As to your second paragraph, I do agree. I have never done anything other than to highlight the problem of secrecy v. oversight. Repeatedly.

          Reply
          • Other David says:

            Your logic is sound (though I think your DWI example doesn’t work because there is an explicit right to test drivers solely on the basis of the requirements to legally operate a vehicle while the lack of privacy to metadata is implicit). My arguments were based on the 4th Amendment prohibition of general warrants. But the courts have clearly determined that these types of searches have not been interpreted to be a violation. Unless that is overturned, it is what it is.

            Nonetheless, I am still confused why the PATRIOT Act was used. But given your discussion, one of the theories that I have heard seems more probable. That is that the warrants were created at the request of the communications companies so that they could explain to their customers that they were forced to provide the data by the courts and that they did everything they legally could to protect privacy.

            Thanks for the discussion.

            Reply
            • David Simon says:

              The DWI thing highlights a legal principle that says if you do it to everyone — no discriminating, no profiling — it’s not constitutionally vulnerable. And yes, you can point to the fact that we all have to be licensed and registered to operate a motor vehicle on public roads as being a unique condition that allows for the DWI checkpoint in the first place. But actually, the analogy is stronger than you credit, I believe.

              Yes, the third-party-sharing status of phone metadata is sufficient to exclude it from the Fourth Amendment, but how that data is gathered and used could still be subject to legal challenges. Profiling and all that. But the analogy is actually this with regard to the metadata, and it’s even less intrusive than a DWI checkpoint:

              Yes, the police can stop you on public roads without cause if they stop everyone and then conduct a checkpoint. But they can also stand by the roadside and record license plate numbers and other details about cars, drivers and occupants. And in that case, they don’t even have to do it for all cars. If they don’t stop the vehicles, they can write and notice what they want, about who they choose to suspect or consider.

              Well, here there has been no DWI checkpoint either. The telecommunications were not halted, or delayed. No breathalyzer was administered. No questions were asked. The interior of the “vehicles” were not searched. Instead, the external and available metadata from all calls was gathered as a standing record of all the vehicles that traveled along this telecommunicative medium. And then later, in effect, that list was compared digitally against other suspect communication. And only at that point is the wiretap, our analogous equivalent of a car stop and search, or breathalyzer, administered.

              None of this is case law, understand. And no analogy is perfect: From the side of the road, a cop can determine direction and location of the vehicles, but not necessarily the point of origin or destination, as can be done with the call data. But it does give you a sense of the minimal legal intrusiveness of what they are doing. Basically, I’m spitballing an honest analogy to previous Supreme Court logic, at best. But, hey, it’s a little bit interesting.

              Reply
              • Sergio says:

                Well, if some cop will be observing and recording my movements with no reasonable suspicion of probable cause, and later will try to bring this up in a court of law as an evidence of some illegal activities, I imagine, defense will have an issue with it. I imagine, if the cops were chasing you around with no probable cause, you could file a restraining order against them. Anyway, thankfully, human cops lack manpower for tracking down everybody. But robocops don’t.

                The recent developments in license plate readers technology make it possible to record and store every cars’ movements in some database, against which one could conduct any search, based on a license plate number, times, locations, etc. For instance, starting this summer, there will be no humans in Golden Gate Bridge toll booths — your license plate will be photographed, recognized, and a bill will be mailed to the address of registration, — no FastTrak devices required any more.

                An upscale town of Piedmont in the East Bay, addressing growing crime rate in neighboring Oakland, approved a plan to purchase and install cameras that can capture the license plate attached to any vehicle moving in and out of town.

                Metadata? Yes, nobody is stopping and searching the vehicles. Privacy violation? Certainly. Do you really enjoy being constantly monitored in public places?

                Reply
  29. Cyber vinnie says:

    Here’s the thing, they can elude to all the terrorist acts that have allegedly been thwarted by this type of surveillance, but all of these programs failed to stop two guys from killing three people and injuring scores more in Boston. The underwear bomber was a Zippo lighter away from bringing down a jetliner — and so was the shoe bomber.

    The reality is no amount of surveillance is going to make us 100% safe, so we need to stop selling our souls for fools gold. Unless of course all of this is just a ruse for some other objective that, in light of tonight’s revelations, I can’t even begin to contemplate.

    I thought we strived to be better than this.

    Reply
    • Golly says:

      I sometimes think that half the reason these attacks aren’t thwarted is because of the psychological culture in these agencies. The collective prejudices and myths and traditions of these ‘g-men.’

      Standards for law enforcement investigations are pretty crappy e.g– gail collins column this week in the NYT on the Mayfield case, and search youtube for videos about the Mayfield case — there was one really good documentary about it a while back.

      And this is across the board– local state national.

      Having observed this crappiness for a long long time, (the Mayfield case is not exceptional except for the insertion of the Spanish authorities) I have suspected certain values underlying them — that integrity in investigations and honoring hard evidence is undervalued. Complicated prejudices and the assumptions of power seem to lurk under the surface in the way erroneous investigations get pushed through, and they always seem to be pushed through hard.

      This all goes to the way targets are chosen, so for those who feel that its all OK as long as you’re innocent are blissfully naive.

      Our laws are written for perfect law enforcement personnel not the real people who are supposed to apply it in the real agency cultures that exist. They are written for agencies where every last employee perceives themselves as part of the family of Americans they are protecting, equal with the ordinary person in every way. In fact, that value is nowhere to be found in these agencies except among unhappy employees who usually end up leaving disappointed.

      It’s pervasive and banal. I don’t know a police department in the country that demands that probable cause statements be honest, where fraud in those reports is not the norm. On the contrary, knowing how to tweek them to the point of being materially fraudulent if need be is the mark of an officer who knows how to make effective reports that will stick.

      If not for Spanish police I am sure Mayfield would be in jail right now while his lawyer worked tirelessly to bring forward evidence of his innocence.

      Every culture is different. I am sure the Spanish police has its own crappy aspects, and UK police too, but each culture is different and the weaknesses won’t be the same. A particular Spanish strength and Spanish PD goals foiled a particular American weakness in that case.

      I’ve seen it in the intersection of UK authorities and US FBI. UK draws the line at a couple of things more conservatively than we do here. We indulge to an absolutely shocking level in some things,– the near entrapment FBI engages in which was brought to light in a few laughable terror investigations that fell apart and its overindulgence in paying off snitches with massive sentencing breaks. It so clearly leads to the incarceration of the wrong people. I don’t believe that agents believe some of the people they are prosecuting are guilty of anything, They are playing “the game.” They are churning out sausage from a sausage factory — that’s their jobs, apparently, and we’ve accept that too much. We have been ‘groomed’ to accept that.

      There is absolutely no shortage of evidence of low standards and the dangers they represent. I think that is worth complaining about.

      Countries that have got it straight are doing good security. Countries like ours — we have a bunch of goobers sitting on their duffs doing Iris scans of foreign nationals at JFK and other airports, helping to create what is perhaps the largest eyeball database in the world. We have perhaps the world’s largest database of eyeballs on top of phone calls and emails, and agencies with a tendency to abuse rights and target innocent people.

      Further we have a law enforcement culture that after targeting innocent people never rights the wrong or admits a mistake.

      It is not just the laws or instances when the laws are flaunted, it is too a culture that has certain routines for targeting innocent people.

      This is about more than invading privacy, it is about quickening and expanding the ability to target and bury innocent people under suspicion, charges and other violations.

      Reply
      • David Simon says:

        The U.K. may be conservative at points, with regard to privacy intrusions.

        On the other hand, if you live in an English city, you are the most surveilled creature on the globe. London, especially. You cannot walk on a street in Central London and not be viewed and recorded by multiple government cameras. They’re way ahead of us on that one.

        Reply
        • Golly says:

          Absolutely agree. They live on cameras.

          i wonder if it is as hard to get access to footage there as here in cases where officials are caught on tape engaging in misconduct.

          Anyone from the UK know?

          Here it can be really tough. One of the arguments officials here use to convince communities to accept increased public surveillance cameras is to say that they will record us too, so that the increased surveillance will be accompanied by increased accountability.

          But in practice, when officials behave badly on camera, good luck getting access to the footage while footage of a mugger or bicycle thief will be on every news program before the day is out

          Reply
  30. Thom says:

    When Nadler says “”We heard precisely the opposite…” it is fair to take he is talking about content. It directly follows comments about subscriber info and content, so he could have just meant subscriber info – but it’s more fair at this point to say it meant both.

    short clip of Nadler and Mueller: http://www.buzzfeed.com/andrewkaczynski/video-congressman-claims-he-was-told-government-could-listen

    Reply
  31. James says:

    The frightening thing for me at the outset of the PRISM revelations was that the not even members of Congress were aware of the reach of the program, let alone the American people. I reiterate now that maybe the original story wasn’t so truly outrageous, but what it did was raise questions about what else is going on that we don’t know about. And doesn’t anyone believe for a minute that this is the end of it?

    If there’s a massive surveillance program going on, and nobody knows just how far it goes, how do we known when the line has been crossed?

    Reply
    • David Simon says:

      The sheer weight and mass of that to which many members of Congress are inattentive could kick the ass of a small black hole.

      That said, many of the briefings were for the intelligence committees only.

      And that said, many of the committee members did not bother to attend.

      Reply
  32. Mike Dixon says:

    This is the essay to which I alluded on the Shirky post. A little unpolished, and somewhat outdated with this most recent story. These days in which we live continually astonish me – something I started writing 14 hours or so ago is now just a bit moot. My central thesis still stands though. Have at it, if you will:

    http://mikedixon22.wordpress.com/2013/06/15/david-simon-his-defenders-and-detractors/

    Reply
  33. CyberVinnie says:

    From the story:

    “Not only does this disclosure shed more light on how the NSA’s formidable eavesdropping apparatus works domestically it also suggests the Justice Department has secretly interpreted federal surveillance law to permit thousands of low-ranking analysts to eavesdrop on phone calls.”

    I’m no journalist, but that’s quite a leap to suggest the DOJ was in on this. It’s pretty cut and dry that the NSA is forbidden from spying domestically.

    Reply
    • David Simon says:

      Well, it was a little less cut and dry after the Patriot Act was married with FISA. The government wanted coordination between overseas intelligence gathering and domestic counter-terror and counter-intelligence. And let’s face it, they weren’t going to build an equivalent computer apparatus for the FBI, just so counter-terror could utilize such capability. One NSA is costly enough. So there was going to be some mesh.

      I wouldn’t discount DOJ having loosely interpreted a law in favor of the executive branch, though. The boss stays the boss. Always.

      Reply
      • Cyber vinnie says:

        But look at Mueller’s testimony quoted in the article. Do you think he was just providing cover or actually had an expectation that domestic eavesdropping still required a warrant?

        Reply
        • David Simon says:

          I’m wondering. The Cnet.com story seems definitive, but it’s been a couple hours and even AP and the other wire services aren’t picking up and asking for government comment. Wassup? Is Mueller and the FBI out of the NSA loop? Or is the story as a whole not being corroborated. Congressman sounds cogent, lucid. And no one has thrown a quote to say he got it wrong, either.

          I guess it’s a Saturday night news cycle.

          Reply
          • Other David says:

            Here is what appears to be the testimony from which CNET made their story:
            http://www.c-spanvideo.org/clip/4456141

            Right now it is tough to say what is going on. Was the FBI director correct or was the secret NSA briefing correct? Or is Rep. Nadler confused? It seems to me that Nadler was very careful in his questioning specifically to try to expose lies. But until further information comes out it may be premature to put too much weight on this single exchange.

            Reply
            • David Simon says:

              I know. I kinda wish the congressman would elucidate a little more about the exchange at the closed hearing. Or that other legislators at the hearing would either affirm or deny. At this point, this little jagged piece is just out there, disconnected from the whole.

              Reply
  34. Luciano says:

    “When the facts change, I change my mind. What do you do, sir?”

    Congrats on keeping your word, Mr. Simon.

    Reply
    • David Simon says:

      The line was always where it was. And from my original language in the original post, a moment like this was not exactly unexpected.

      That said, I’ll be interested to see this story corroborated. Keep an eye on the laptop, I suppose.

      Reply
  35. Les says:

    And of course, people will come here going “I told you so!” even though your original point about metadata stands.

    Reply
  36. Edward Copeland says:

    I meant civil libertarians on the left in my previous post.

    Reply
  37. Edward Copeland says:

    The revelations keep piling up. Elected officials (whether or not you agree with them) keep calling Edward Snowden a traitor, the only crime outlined in the Constitution, proving that senators and U.S. representatives know even less about how our founding document that I thought. I’m surprised no one has thought to ask why someone started snooping through David Petraeus’ private e-mails over matters that had nothing to do with national security, just adultery. Something truly must be amiss if you can get the black helicopter crowd, Tea Party types on the right, civil libertarians on the right and run-of-the-mill moderates to agree that something smells.

    Reply
    • katie says:

      Well, he might be a traitor anyway. We don’t know that. I certainly don’t think he deserves to be hailed as a hero at this point. He’s not the one who uncovered this story.

      As far as the far right, they’ve been trying to make a scandal out of everything since 2008. They get no credit for this.

      Reply
    • David Simon says:

      No, Petraeus has nothing to do with NSA.

      The route of that investigation has been reported. Complaint from the one woman, FBI investigates, and does so without requiring any metadata from the NSA. He can get all that through ordinary, domestic investigation. Again, Edward, metadata is easily obtainable to law enforcement anyway. Access to it doesn’t require this particular NSA program.

      But this actual wiretapping of citizens? This isn’t that program, and this isn’t metadata. This is something else. And, if the story stands, this is what a real scandal looks like.

      Reply
      • Edward Copeland says:

        I know the Petraeus deal had nothing to do with NSA or metadata, but at the same time it bugged me that the government would go snooping even through regular means over a matter like that and makes me ask what’s to stop crackpots and well-connected people with agendas to be able to use the higher technologies for similar purposes.

        Reply
  38. katie says:

    Seriously. The nbc news lede right now is about the Avon, Ohio duct tape festival.

    Reply
  39. katie says:

    Wow. How is this not headline news?

    Reply
    • David Simon says:

      I’m hoping that the NYT, Washpost and everyone else is on the hunt.

      Reply
      • katie says:

        I hope so too. If it’s all the same to you, I’m still going to call you a crypto fascist, though.

        Thanks for keeping this fresh, Mr. Simon. And for caring about details.

        Reply
  40. David Jao says:

    Surprise, surprise. As if nobody could have predicted the inevitable abuse.

    Reply
    • David Simon says:

      Hey David, welcome back.

      From the original post which upset you so:

      “When the Guardian, or the Washington Post or the New York Times editorial board are able…to show that Americans actually had their communications monitored without sufficient probable cause and judicial review and approval of that monitoring, then we will have ourselves a nice, workable scandal. It can certainly happen, and given that the tension between national security and privacy is certain and constant, it probably will happen…”

      You can shape me as credulous, but that’s bullshit. Now there is an actual scandal. Now there is a constitutional affront. Now there is government overreach. And I am as good as my word about where I believed the line should be drawn. If this story stands, this is the place to fight. And this is something to fight over.

      Reply
      • David Jao says:

        I believe the only big difference between our views is that you think abusive content monitoring “probably will happen”, and I think it is occurring already. Even if this particular report proves to be wrong, I’m sure it’s happening in some other form. With so little oversight, and so much of the work being performed in secret, such developments are inevitable.

        You insist on seeing proof that the line has been crossed. Conveniently, the extreme secrecy of the program makes it very hard to gather that proof. We can argue about exactly where to draw the line, but no matter where it is drawn, I know just based on common sense that the line has already been crossed. Drawing inferences based on human nature is not hyperbole, it’s logic.

        Reply
        • David Simon says:

          David,

          I’m actually intent on arguing stuff so that things get better and not worse. When you join an argument utilizing a program that is legal under three decades of U.S. communications law, that has a viable counter-terror purpose, and you do so without evidence that the program has yet been misused, it is a chump move. That Verizon story said little to me, knowing as much about where the Fourth Amendment lies as I do. And this affront to civil liberties, if corroborated, isn’t part of the data-pile argument. So hyping stuff beyond its import, you take away from the real issues, and real overreaches which are ongoing from the drug war forward.

          This — if corroborated — is real, and if people focus on the real, and use the real, then they have some ammunition in their gun.

          Reply
    • katie says:

      Seriously, why waste your time on this crap? What you speculated might have been true has no bearing on actual facts.

      Reply
      • David Jao says:

        You call this speculation? History has shown that secret power with no oversight always leads to abuse. It’s why things like the fourth amendment exist.

        Reply
        • Katie says:

          Yes. I believe that you leaping to a conclusion based on your reading of history and what you believe to be human nature, absent any actual facts relevant to the subject at hand is pretty much the textbook definition of speculation.

          Reply
          • David Jao says:

            It is a fact, which no one (not even Mr. Simon) is disputing, that the secrecy and lack of public oversight surrounding this surveillance program is unprecedented in the developed world in modern times.

            What are they trying to hide? Don’t be so naive.

            Reply
            • David Simon says:

              I think you mean to say, perhaps, in Western democracies. Kind of an overreach to suggest that Russian and Chinese national security blackouts aren’t the equal of our own. And you’ve also overstated the level of secrecy. This is bad, but it was worse before the Church Commission and FISA. An illegal wiretap wasn’t even considered illegal then. There wasn’t weak and ineffectual oversight before Church; there was zero.

              That said, Mr. Jao, you are entitled to be suspicious of government. I am. As I’ve said elsewhere, trust is not a currency that any sentient person expends when deciding whether to support or oppose a government action or program. But if you try to work backwards and use the secrecy to assume the purpose, you are embracing a fallacy there. Secrecy proves that these are secrets, which they are because they’re trying to either hide national security programming, or the construct of infrastructure that is destined and purposed for unconstitutional use. Either one would be sufficient for secrecy. Both would be as well.

              Reply
            • katie says:

              Ah, yes. I knew it was only a matter of time before you called me naive. Of course I am not defending the program. I’m talking about your idea that whatever you suspect to be true = the truth. Facts are the only things that matter here, not your prognostication. Your speculation may turn out to be spot on. Or maybe not.

              Reply
              • Golly says:

                It isn’t fair to accuse someone of not providing proof of those things we accept as political axioms, things which by definition we consider self-evident. “We” being Americans.

                His points are both explicit in and implied by the US Constitution and Bill of Rights, for two, which were both in part responses to an English system that exhibited plenty of examples. That proof is no longer in need of proof.

                I come down in favor of David on that one and believe your assertions in response to his are the ones that are a bit wild.

                Reply
                • katie says:

                  Huh? This is a response to me?

                  David Jao’s first post on this topic was an “I told you so.” I responded that sort of crap is a waste of time. He questioned my use of the word speculation. I said yes, when you decide something is true without facts, that is speculation. He called me naive. I reiterated that speculation is not the same as proof.

                  Not sure at all where you could come up with the idea that I am making wild assertions. Or bringing up self-evident truths. I’m just asking that we withhold judgment until we know if any laws have been broken. And if what we guessed might be true turns out to be true, I ask that we withhold the “I told you so” attitude.

                  Wild assertions? Really?

                  Reply
  41. jack mccoy says:

    Damn. if this is true they have indeed taken a lighter to the constitution. When I think about the hoops I (rightfully) jump through to draft an affidavit for a t3…and some guy in a cubicle can push a button and listen to an Americans phone call…because he thinks he should…I’m at a loss for words. Damn.

    Reply
    • David Simon says:

      Yep. This is the crux of the biscuit, as Frank Zappa would say. On the other hand, I say, adding to this post the next morning and seeing no additional reporting from anywhere that is corroborative, it is one post only, relying on one congressman’s understanding of an exchange in secret. It is starting to feel a little thin. If nothing by Monday when the newsrooms are again full and phone calls get made…

      Reply

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